Delhi District Court
Bses vs . Jagdish Arora & Ors., Cc No. 111/09 Page ... on 27 July, 2013
1
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.: 111/09
Police Station : Mehrauli, New Delhi
U/s 135 & 150 of Electricity Act, 2003
Unique ID No. 02406 RO302272009
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. Jagdish Singh S/o Shri Shamsher Singh
2. Sandeep Singh @ Mohd. Irfan
R/o Masjid in front of
(Sheikh Nazuddin Firdoshi)
Near Shamshan Ghaat,
Mehrauli, New Delhi110030
Adjacent to electric
pole no. BSESV.K.J. B078
3. Narender Singh S/o Shri Ram Bhawan
R/o Masjid in front of
(Sheikh Nazuddin Firdoshi)
Near Shamshan Ghaat,
Mehrauli, New Delhi110030
BSES Vs. Jagdish Arora & Ors., CC No. 111/09 Page 1 of page 28
2
Adjacent to electric
pole no. BSESV.K.J. B078
Also at: Khyala,
DDA Flat No. 233 & 334,
B Block, New Delhi.
4. Dalel Singh S/o Shri Phool Singh
All are also : R/o House no. 266/P4,
Ward No. 2, Kishan Garh,
Mehrauli, Vasant Kunj,
New Delhi
...Accused
Appearances : AR with Shri Rishab Raj Jain, counsel for
complainant.
Accused Dalel Singh is present on bail along with
Shri S. Satyanarayana, Advocate.
Accused Jagdish Singh, Narender Singh and Sandeep
Singh @ Mohd. Irfan are present on bail along with
Shri Ashok Kotnala, Advocate.
Complaint instituted on : 20.03.2009
Judgment reserved on : 20.07.2013
Judgment pronounced on : 27.07.2013
JUDGMENT
1. The case of the complainant in brief is that on 28.08.2008, the officers of the complainant company namely, Shri Vipin Kumar - Sr. Manager, Shri Anuraj Field Executive, Shri K.K. Sharma - Training Engineer and Shri Sumer (photographer), inspected the premises i.e H. No. 266/P4, Ward No. 2, Kishan Garh, Mehrauli, BSES Vs. Jagdish Arora & Ors., CC No. 111/09 Page 2 of page 28 3 Vasant Kunj, New Delhi, which was being used and occupied by the accused namely Jagdish Arora, Sandeep Singh, Narender Singh and Dalel Singh and it was also found from the records of complainant company, that accused Dalel Singh was the registered consumer and accused were the users of electricity supply at the premises in question, where the theft of electricity was being committed. It is further mentioned in the complaint that two number of electronic meters bearing numbers 13319394 (CR 13666) and 14014155 (CR .01) were found installed in the premises in question and outgoing of both the said meters found disconnected and electricity was being used illegally without using meter and that the entire connected loaad of 9.390 KW for commercial purpose was found running directly with the BSES RPL system. It is further mentioned in the said complaint that one two core black colour aluminium wire of size 3 meters and one electronic meter no. 13319394 reading 13661 were also seized by the officials of complainant company and that the videography of the same was got conducted and that inspection report, meter report, load report and seizure memo were also prepared at site and thus, accused were causing wrongful loss to the complainant and wrongful gain to themselves and were thus BSES Vs. Jagdish Arora & Ors., CC No. 111/09 Page 3 of page 28 4 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. 3,30,805/ with due date as 25.09.2008 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 08.05.2009 and the accused appeared and were supplied with the documents and CD of videography and my Ld. Predecessor vide his order dated 07.03.2012 framed a notice U/sec. 251 Cr.P.C. for commission of offence punishable u/s. 135 of the Electricity Act, 2003 against the accused Sandeep Singh @ Mohd. Irfan, Narender Singh and Jagdish Singh and u/s. 135 r/w/s. 150 of the Electricity Act, 2003 against accused Dalel Singh, and accused Sandeep Singh @ Mohd. Irfan, Narender Singh and Jagdish Singh pleaded not guilty and claimed trial on the ground that they were the tenant of accused Dalel Singh and that as per understanding between BSES Vs. Jagdish Arora & Ors., CC No. 111/09 Page 4 of page 28 5 them and accused Dalel Singh, they used to pay electricity charges to him and that they were not committing any theft of electricity. Accused Dalel Singh pleaded not guilty and claimed trial on the ground that he had electricity meter connection against K. No. 2521 G 404 2352 and from the said meter he had provided supply of electricity to his tenants, the above mentioned three accused, and that he was charging them for consumption of electricity and that he was paying the electricity bills regularly and that the the meter was not bypassed and supply for routed through the meter and that he was not abetting accused Sandeep Singh @ Mohd. Irfan, Narender Singh and Jagdish Singh for committing any theft of electricity nor he himself was committing any theft of electricity. All the accused persons had taken a ground that the case against them was false and and that they are not liable to pay any damages and loss to the complainant company.
4. In order to prove the case of the complainant, five witnesses were produced, which have been discussed below.
5. The separate statements of all the accused were recorded BSES Vs. Jagdish Arora & Ors., CC No. 111/09 Page 5 of page 28 6 U/sec. 313 Cr.P.C.. Accused Dalel Singh in his statement pleaded his innocence and denied the evidence as false and answered that he was not abetting theft of electricity to accused Jagdish, Narender Singh and Sandeep Singh @ Mohd. Irfan and that he was also not using the electricity and that he was not present at the premises in question at the time of inspection and he reached at the spot when inspection team was about to leave the spot and that his tenants coaccused Jagdish, Narender Singh and Sandeep Singh @ Mohd. Irfan were using the electricity and that none of the documents was prepared in his presence and that theft bill has been wrongly raised and that he was not aware of any videography/photography and that he was residing at House No. 60/09, Kishan Garh, Vasant Kunj, New Delhi, which was five km away from the premises in question. Thereafter, accused Dalel Singh opted to lead defence evidence, but had not produced any defence evidence on his behalf.
6. Accused Jagdish, Narender Singh and Sandeep Singh @ Mohd. Irfan in their separate statements u/s. 313 Cr.P.C. pleaded their innocence and denied the evidence as false and answered that they were not indulging in any theft of electricity and their BSES Vs. Jagdish Arora & Ors., CC No. 111/09 Page 6 of page 28 7 name was implicated being the tenants in the premises in question and that they were the tenants and were paying the electricity charges to landlord coaccused Dalel Singh as per understanding between them and him, and who further used to pay the electricity charges to complainant company and that none of the documents was prepared in their presence and that they were not aware, if any photography/videography had been conducted and all the said accused opted to lead defence and accused Mohd. Irfan and Narender Singh themselves appeared as DW2 and DW3 in their defence under permission vide section 315 Cr.P.C., which have been discussed below.
7. I have heard the counsel for the complainant and counsels for the accused Shri S. Satyanarayana and Shri Ashok Kotnala, advocates, and perused the record including the CD of videography displayed on the computer screen of the court.
8. PW1 Shri K.K. Sharma, Trainee Engineer in the complainant company deposed that on 28.08.2008 at about 1.00 p.m., he along with Shri Vipin Kumar, Shri Anuraj, Shri Brij Vihari, Shri Mahesh and Shri Sumer along with Delhi police and CISF BSES Vs. Jagdish Arora & Ors., CC No. 111/09 Page 7 of page 28 8 personnels visited and inspected the premises bearing no. House No. 266, Ward No. 2, Kishan Garh, Mehrauli, New Delhi and they found that there were two meters bearing no. 13319394 (bearing current reading - 13666 KWH) installed in the name of Shri Dalel Singh and 14014155 (bearing current reading 01 KWH) was also installed and was not showing in the EBS system of the complainant and both the said meters were found disconnected at the time of inspection and the accused were using the electricity without the meter and directly tapping from the service line of the complainant. PW1 further deposed that accused Dalel Singh, Jagdish Singh, Narendra and Sandeep were found present at the spot at the time of inspection and he also identified accused Dalel Singh, Jagdish Arora and Narendra, who were present in the court on the date of deposition and the workers present at the spot had disclosed the name of Sandeep. PW1 further deposed that the total connected load of the premises was found to be 9.390 KW for commercial purpose and that commercial activities consist of godown, carpentry shop and car washing shop. PW1 also proved inspection report, meter details and load report as Ex. CW2/1, CW2/2 and Ex. CW2/3 and he also correctly identified the videography BSES Vs. Jagdish Arora & Ors., CC No. 111/09 Page 8 of page 28 9 contained in CD, Ex. CW2/5. PW1 further proved carbon copy of seizure memo as Ex. P1 and black colour aluminium cable of size 10 mm. sq. and 3 meters in length as Ex. P2.
9. In his cross examination, on behalf of accused Dalel Singh, PW1 replied that he did not physically verify the zone regarding the complaint from the EBS and he volunteered that one member of the team had confirmed the same. PW1 further replied that he did not confirm from the zone as to when and on what occasion the meters in question were disconnected. In his cross examination on behalf of accused, Narender Singh, Jagdish Singh and Sandeep Singh @ Mohd. Irfan, PW1 answered that there was electricity meter burning in the said premises on the date of inspection and that there was only one electricity meter, which was installed in the last room the said premises. PW1 further answered that all the accused persons were present at the spot at the relevant time and were doing their respective job in the said premises. PW1 admitted that the electricity disconnection was being carried out at the pucca premises of the first floor and that the main service cable was disconnected from the pole. PW1 further answered that the case property consisted BSES Vs. Jagdish Arora & Ors., CC No. 111/09 Page 9 of page 28 10 of the illegal wires, which had been cut as much as possible. PW1 also replied that accused did not allow them to bring the remaining cable. PW1 admitted that when electricity flows in the electricity meter, it shows some reading and that meter in question had also shown some meter reading at the time of raid and that in the site plan, two premises had been shown. PW1 further replied that the whole length of the cable was approximately 2530 meters.
10. PW2 Shri Vipin Sharma is the DGM (O&M) in the complainant company, who deposed almost on the same lines on which PW1 had deposed and as mentioned in the complaint. PW1 further deposed that all the accused persons were present at the spot at the relevant time. He also identified all the four accused persons, who were present in the court on the day of his deposition.
11. In his cross examination on behalf of accused Narender Singh, Jagdish Singh and Sandeep Singh @ Mohd. Irfan, PW2 replied that both the meters were installed inside the room at the left side of entrance of premises in question and that at the time BSES Vs. Jagdish Arora & Ors., CC No. 111/09 Page 10 of page 28 11 of inspection, the meter was showing reading. PW2 admitted that meter Ex. P2, when produced in the court, was not reflecting any reading. PW2 volunteered that meter contains battery which supports the LCD to show the reading and the battery gets discharged over a period of time. PW2 answered that the documents were prepared outside the plot of the accused while sitting near our vehicles. In his cross examination on behalf of accused Dalel Singh, PW2 did not remember as to whether the tapping point on the service cable was covered in the videography. PW2 admitted that the seized wire was not given any specific marking at the time of seizure to indicate that the same was removed from the premises of the accused persons.
12. PW3 Shri Sumer was the videographer who conducted the videography on the direction of Shri Vipin Kumar on the date of inspection i.e. 28.08.2008. PW3 also proved the videography contained in the CD Ex. CW2/5. In his cross examination on behalf of all the accused person, PW3 answered that after the raid, the video camera was deposited in the office of M/s. Arora Photo Studio. PW3 volunteered that he had also conducted the videography of the premises of Pop Singh.
BSES Vs. Jagdish Arora & Ors., CC No. 111/09 Page 11 of page 28 12
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. CW2/6.
14. In his cross examination on behalf of accused Narender Singh, Jagdish Singh and Sandeep Singh @ Mohd. Irfan, PW4 admitted that the accused Dalel Singh was the registered consumer and that the bill raised was liability on the premises and on towards the individual. In his cross examination on behalf of the accused Dalel Singh, he replied that he did not place on judicial record, the receipt of the speed post vide which the said theft bill was dispatched and that the said theft bill Ex. CW2/6 was raised against accused Dalel Singh as he was the registered consumer of the connection.
15. PW5 Shri Ashutosh Kumar is the A.R. of the complainant who proved his General Power of Attorney on behalf of the BSES Vs. Jagdish Arora & Ors., CC No. 111/09 Page 12 of page 28 13 complainant company as Ex. PW5/1 and he identified the signatures of the previous A.R. on the complaint Ex. CW1/1 and he further proved letter of authority of the previous A.R. as Ex. CW1/2 and he deposed that he has no personal knowledge of the facts of the case and has deposed as per records. In his cross examination on behalf of the accused Dalel Singh, he replied that he did not visit the premises in question and that he had no personal knowledge of the present case. In his cross examination on behalf of accused Narender Singh, Jagdish Singh and Sandeep Singh @ Mohd. Irfan, PW5 replied that he was not pursuing case as an advocate.
16. DW1 Mohd. Zakir deposed that on 28.08.2008, accused Mohd. Irfan was at his house for the whole day as there was a pre marital fixing and talks of younger sister namely Faimin and one Mohd. Farman informed that people from electricity had come to Kishan Garh where said Irfan had taken a rental shop for godown purpose. In his cross examination on behalf of the complainant, he admitted that house no. 266/P4, Ward No. 2, Kishan Garh, Mehrauli Vasant Kunj was on rent with accused Irfan for using the same as godown but he did not know the BSES Vs. Jagdish Arora & Ors., CC No. 111/09 Page 13 of page 28 14 name of the landlord. He had no documentary proof to show that the would be inlaws had come to his house on the date of inspection for the said purpose.
17. Since there was a conflict of interest among the accused, counsel for accused Dalel Singh, cross examined DW1, who answered that the said premises was on rent for two months prior to the date of inspection and that he had visited the said premises for 10 times during the said period and there was a road on the one hand of the premises and a shop at the back side of the premises, where business of eatable chips was being conducted and that he had seen the person accused Dalel Singh present in the court, from whom his father i.e. the accused Irfan had taken the premises on rent.
18. Accused Mohd. Irfan had appeared as DW2 who also deposed that on 28.008.2008 as there was a talk of marriage relationship of his daughter, he was informed in the evening by one Mohd. Farman that his rented premises at Kishan Garh was inspected by the electricity people. He deposed that there was a submeter installed at the said premises according to the reading BSES Vs. Jagdish Arora & Ors., CC No. 111/09 Page 14 of page 28 15 of which, he was paying the electricity charges to accused Dalel Singh, who was the landlord, present in the court. In his cross examination on behalf of the complainant, DW2 replied that rent was Rs. 6000/ per month excluding the electricity charges and there was no rent agreement. He admitted not to have any document to show regarding payment of electricity charges to accused Dalel Singh. He had no knowledge if the meters installed at the said rented premises were disconnected and the said rented godown was being used for keeping furniture which used to be open daily and he had kept Mohd. Farman to lookafter the said godown in his absence and that he had no document to show that he was paying the said rent to the said landlord including electricity charges. On the said ground DW2 was also cross examined on behalf of accused Dalel Singh, wherein he admitted that accused Dalel Singh was not running any business in the said premised where his godown was situated and accused Dalel Singh was residing at a distant place from the said rented premises and used to visit sometimes and that he did not know even the address of accused Dalel Singh.
BSES Vs. Jagdish Arora & Ors., CC No. 111/09 Page 15 of page 28 16
19. DW3 accused Narender Kumar deposed that he was in the business of interior decoration at Okhla, New Delhi and on 28.08.2008, he was on his said job from 11.00 a.m. to 6.00 p.m., and on the following day when he visited the other site of his office at Kishan Garh, he came to know that electricity raid was conducted at the premises. He further deposed that it was a rental premises and its owner was the Dalel Singh and rate of rent was Rs. 8000/ per month excluding electricity charges and there was a sub meter installed by the owner and as per which he used to pay the electricity charges to his landlord and when the raid was conducted, at that time he was at Okhla site along with his another partner Raj Kumar.
20. In his cross examination on behalf of the complainant, he admitted that accused Dalel Singh was the landlord of the premises which was taken on rent 8 or 8 ½ months prior to the date of said raid and that no rent agreement was executed and that no receipt of the payment of electricity charges against the said sub meter was with him nor it was issued by the said landlord nor any rent receipt was being issued by the landlord and the said premises was being used by him for running a BSES Vs. Jagdish Arora & Ors., CC No. 111/09 Page 16 of page 28 17 workshop of the said interior decorator business. He did know if any electricity meter was installed in the premises or not. He could not tell the number of sub meter and he could not produce any photograph of the sub meter.
21. DW4 was dropped by the accused as defence witness.
22. DW5 accused Jagdish Singh deposed that he did not remember the date of inspection of the premises as well as the address of the premises where the raid was conducted, but it was conducted at his premises at Kishan Garh when he was present at his premises and thereafter, inspection team took the photographs and left the premises and the premises was being used for godown for snacks from 9.00 a.m. to 5.00 p.m. daily and the owner of the premises was Dalel Singh. He testified that he used to pay electricity charges to said Dalel Singh through a sub meter installed at his premises in cash and there was no rent agreement executed.
23. In his cross examination on behalf of the complainant, DW5 replied that he was occupying the premises since past one BSES Vs. Jagdish Arora & Ors., CC No. 111/09 Page 17 of page 28 18 year from the date of inspection and the electricity was supplied from the premises opposite to the premises in question and that he knew Narender Singh, who was occupying the adjoining premises as tenant under the landlordship of Dalel Singh. He replied that he did not know the person namely Sandeep Singh, but he was actually Irfan, who was also occupying the premises opposite to his premises as tenant and the electricity was supplied to all of them by Dalel Singh and that on the day of inspection Narender Singh was not present and he could not say about the presence of Irfan. He admitted that Dalel Singh was present at the site at the time of inspection and that at that time workers were also present at the premises of Irfan and Narender. He replied that Narender Singh and Irfan were carrying out carpentry / furniture work at their premises. He admitted that videography was conducted at the premises and that inspection team had asked his name. He further replied that he used to pay Rs. 300/ to Rs. 500/ per month in cash towards electricity charges to the said landlord Dalel Singh as per sub meter units consumed by him and Rs. 6500/ per month in cash towards the rent. He answered that there were no electricity charges payment receipts or rent receipts given by Dalel Singh. He did BSES Vs. Jagdish Arora & Ors., CC No. 111/09 Page 18 of page 28 19 not know as to whether the electricity meter installed at the premises of Chaudhary Dalel Singh was lying disconnected. He was confronted with the address of the premises as house no. 266/P4, Ward No. 2, Kishan Garh, New Delhi, which he admitted as the same where the inspection was carried out.
24. From the evidence of the complainant witnesses, it has come on the record that on 28.008.2008 at about 1.00 p.m., at premises no. 266/P4, Ward No. 2, Kishan Garh, Mehrauli, New Delhi, a raid was conducted by the officials of the complainant company and two meters bearing no. 13319394 having current reading as 13666 KWH and meter no. 14014155 having current reading as 01 KW were found installed in the premises and the meter bearing no. 13319394 was installed in the name of accused Dalel Singh and the other said meter was not showing the EBS system of the company and outgoing of both the aforesaid meters were found disconnected and accused were using electricity without the meter and directly tapping from the service line of complainant company and accused Dalel Singh, Jagdish Arora, Narender and Sandeep were found present at the spot at the time inspection and it is admitted case of the accused BSES Vs. Jagdish Arora & Ors., CC No. 111/09 Page 19 of page 28 20 that name of accused Sandeep is Mohd. Irfan, which was wrongly recorded because as per PW1, the workers had disclosed said name as Sandeep and the total connected load of the premises was found to be 9.390 KW for commercial purpose and accordingly, the inspection report, meter details and load report were prepared and videography was conducted and the meter number 13319394 and 2 core aluminium cable black in colour 3 meters in length were seized from the spot. In their cross examinations, the accused have tried to assail their testimony by showing that the meter produced in the court was showing some reading and as such it cannot be said that it was non functional and the witnesses have explained that the meter contains a battery which supports the LCD to show the reading and the battery gets discharged over a period of time.
25. It has been further pointed out on behalf of the accused against their testimony that in the complaint, the K. No. is mentioned as 2521G4042352 in para 5 of the same, whereas in the inspection report Ex. CW2/1, it is mentioned as 2521 G4022398 which has been explained in the arguments that the inspection report mentions the new K. No. However, the meter BSES Vs. Jagdish Arora & Ors., CC No. 111/09 Page 20 of page 28 21 numbers installed in the premises were found to be the same.
26. It has been argued against the testimony of PW1 and PW2 that no independent witness was cited as witness nor any official of Delhi Police or the CISF was cited as witness, though, they were present. The PW1 has explained that the police officials were associated with them only for their protection. Even otherwise 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. Hence, the said argument is liable to be rejected outright.
27. I am of the considered opinion that in the cross examination of PW1 and PW2, nothing came out on the surface to discredit their testimony which has almost remained unrebutted on the record. Their respective depositions find corroboration from the documents proved on record and BSES Vs. Jagdish Arora & Ors., CC No. 111/09 Page 21 of page 28 22 artificial material seized and proved before the court, as discussed above. Moreover, PW1 and PW2 were having no axe to grind against the accused. Thus, the presumption as mentioned in 3rd proviso to section 135 of the Electricity Act, 2003, has arisen against the accused and onus to rebut the same did shift on the accused.
28. Next issue arises as to what extent the accused is required to discharge his burden in order to rebut the said presumption.
29. 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 BSES Vs. Jagdish Arora & Ors., CC No. 111/09 Page 22 of page 28 23 probable, the standard or reasonability being that of the 'prudent man'."
30. Judging in the light of the said law, laid down by the Hon'ble Supreme Court, let me examine as to whether the accused has been successful in rebutting the said presumption. When the notices u/s. 251 Cr.P.C. were framed against accused Sandeep Singh @ Mohd. Irfan, Narender Singh and Jagdish Singh, who were admittedly tenants of accused Dalel Singh, the said three tenant accused replied in their notice that as per understanding between landlord Dalel Singh, they used to pay electricity charges to him as he had provided supply to them. The defence of the accused Dalel Singh as mentioned in the reply to said notice was that he was having a K. No. 2521G4042352 against which he was consuming metered electricity and from the same connection he had provided supply of electricity to his tenants i.e. coaccused no. 1 to 3 and had been charging them for consumption of electricity and regularly paying the bills to the BRPL.
31. When the said three tenant accused namely Sandeep Singh @ Mohd. Irfan, Narender Singh and Jagdish Arora were examined BSES Vs. Jagdish Arora & Ors., CC No. 111/09 Page 23 of page 28 24 u/s. 313 Cr.P.C., accused Jagdish Arora merely denied his indulgence in the theft of electricity on the ground that his name has been falsely implicated being the tenant of the electricity meter and that he was paying the electricity charges to his landlord as per understanding between them and landlord in turn used to pay the electricity charges to the complainant company. Same was the defence of accused Sandeep Singh @ Mohd. Irfan and Narender Singh.
32. When the said three tenant accused produced their defence, they failed to show any rent agreement or payment receipt of electricity charges to their landlord namely the accused Dalel Singh. Accused Sandeep @ Mohd. Irfan as DW2 had unsuccessfully tried to take plea of alibi by stating that he was away to his home in connection with talks of the marriage relationship of his daughter at the relevant time because in the theft of electricity, the presence of the thief is not necessarily required as is required during the theft of any other tangible item due to the very nature of electricity as such. Similar was the plea of alibi of accused Narender Kumar, which cannot be relied for the said reasons. He also failed to produce any receipt or BSES Vs. Jagdish Arora & Ors., CC No. 111/09 Page 24 of page 28 25 otherwise circumstantial evidence to make believe the court that they were really paying the electricity charges to the landlord accused Dalel Singh. Accused Jagdish Singh as DW5 admitted his presence at the time of inspection and he also failed to produce any such believable evidence to prove that payment of electricity charges was being made to accused Dalel Singh.
33. The remarkable feature of the defence of the said three accused when they appeared in the witness box , is that now as defence witnesses they have changed their stand by deposing that there was a submeter installed at the said rented premises and they used to pay the electricity charges as per consumption recorded by the submeter.
34. Although, the very concept of providing a submeter is not supported by any law and which may amount to distribution of electric energy without a due license as provided under the said Electricity Act. Even if I take the said stand of the said three accused as true for the sake of argument only and not holding so, all the three accused have failed to produce even a photograph of the submeter or any other direct or circumstantial evidence to BSES Vs. Jagdish Arora & Ors., CC No. 111/09 Page 25 of page 28 26 that effect. Thus, inter se defence of the said three tenant accused is not only contradictory in nature but their changing stand go to establish that their defence cannot be said to be probable so as to be believed from a "prudent man's test".
35. The said defence of the said three accused is further belied by the fact that accused Dalel Singh, being the admitted landlord did not take any such stand of any submeter installed in the premises either in answer to the notice framed against him, nor in his statement recorded u/s. 313 Cr.P.C. nor he appeared in the witness box either to contradict the said stand taken by the said three tenants/accused nor to support their stand. It is further surprising that accused Dalel Singh did not put even a suggestion to PW1 and PW2 in their respective cross examinations that there was a submeter in the premises through which the other three accused were being supplied with electricity. From this point of view also, the defence of the said three accused becomes highly improbable and it cannot be said that they have been successful in rebutting the said presumption as is required under the law.
BSES Vs. Jagdish Arora & Ors., CC No. 111/09 Page 26 of page 28 27
36. Coming to the case of landlord accused Dalel Singh, who took the stand that he was consuming electricity through a meter duly installed in his premises and from the same meter he was supplying the electricity to the other three accused being his tenants. But he failed to produce even a single bill with regard to any payment made by him as per consumption recording of a duly installed meter as alleged by him. It is a famous proverb that "all should sail or sink together". The contradictory stand taken by the said three tenant accused on the one hand and the landlord accused Dalel Singh on the other hand, go to establish that they were throwing merely mud on each other, which in itself go to suggest that they were not having any defence which may even go to the extent of rebutting the said presumption.
37. The other stand of accused Dalel Singh that he was not doing any business in the premises in question or residing some where else or these were the tenants who may be committing theft of electricity is devoid of any merit, in view of the judgement of Hon'ble High Court of Delhi in case titled as "Hindustan Petroleum Corporation Ltd. Vs. BSES Rajdhani Power Ltd. & Anr., 138 (2007) DLT 679" wherein it was held that, BSES Vs. Jagdish Arora & Ors., CC No. 111/09 Page 27 of page 28 28 "......Where theft of electricity done at premises of principal agent by licensee and principal agent is keeping its eye closed to theft or other similar things done by licensee, charge of abatement of offence prima facie made - Abatement is not only done by positive act -
Abatement can also be done by omission to do positive act by one who is responsible to act".
38. In view of my discussion, I am of considered opinion that the complainant has been successful in proving the case against all the accused beyond reasonable doubt and as such accused Jagdish Singh, Sandeep Singh @ Mohd. Irfan and Narender Singh are held guilty and convicted u/s. 135 and accused Dalel Singh is held guilty and convicted u/s. 135 r/w/section 150 of the Electricity Act, 2003. The file be consigned to the record room.
Announced in the open ( RAKESH TEWARI )
court on 27.07.2013 ADDL. SESSIONS JUDGE
SPL. ELECTRICITY COURT
SAKET COURTS, NEW DELHI
BSES Vs. Jagdish Arora & Ors., CC No. 111/09 Page 28 of page 28