Delhi District Court
Complainant vs Prakash .............Accused on 12 February, 2013
Page 1 of 9
IN THE COURT OF SURESH KUMAR GUPTA: ADDITIONAL
SESSIONS JUDGE, SPECIAL ELECTRICITY COURT,
DISTRICT COURT DWARKA, NEW DELHI
CC No. 97/11
ID No. 02405R0648492008
Section 135 Electricity Act, 2003.
BSES Rajdhani Power Ltd
Registered office at:
(a) BSES Bhawan Nehru Place,
New Delhi 110019
(b) Corporate, Legal and Enforcement Cell,
Near Andrews Ganj Market,
New Delhi 110049
..............Complainant
Versus
1. Prakash .............Accused
2. Vijay Painter ............(proceedings withdrawn)
3. Gogi ............(proceedings withdrawn)
All at:
In front of Suraj Cinema,
Dhansa Road,
Near Fire Brigade Station,
Najafgarh, New Delhi.
Date of institution: .............26.03.2008
Arguments heard on: ............30.01.2013
Judgment passed on : ............12.02.2013
Final Order: ............Acquitted
CC No. 97/11
Page 2 of 9
JUDGMENT:
1. The brief facts of the case are like this. On 12.02.2008 at 4.15 pm a joint inspection team headed by Sh.Raju SaklaniAsstt. Manager (Enforcement) of the complainant company inspected the premises situated in front of Suraj Cinema, near fire brigade station, Dhansa Road, Najafgarh, New Delhi (hereinafter referred to as inspected premises). The accused namely Prakash, Vijay and Gogi were found users of the inspected premises. No electricity meter was found installed in the inspected premises. The accused were indulging in the direct theft of electricity by tapping electricity from L V mains of the complainant with the help of wires which were feeding the supply of the inspected premises. A connected load of 10.049 KW, 0.846 KW and 2.206 KW was found running for nondomestic purposes. The photographs of the premises were taken. The video clipping of the premises was also prepared. Inspection report, meter details report and load report were prepared and offered to the accused who refused to receive and sign the same. An assessment bill for theft of electricity was raised against the accused which remained unpaid. Hence, this complaint.
2. The complainant examined two witnesses in pre summoning evidence. On 12.09.2011, the complaint against accused CC No. 97/11 Page 3 of 9 no.2 and 3 was dismissed as withdrawn. Accused no.1 was summoned for the offence U/s 135 of Electricity Act (herein after referred to as Act). Copy of complaint and documents were supplied to the accused. NOA U/s 251 Cr.P.C was put to the accused to which he pleaded not guilty and claimed trial.
3. The complainant examined three witnesses. Complainant evidence was closed. Accused was examined U/s 313 Cr.P.C wherein his defence is of denial simplicitor. However, he has examined two witnesses in defence evidence.
4. PW1 Raju Saklani stated that on 12.09.2008 at 2.15 p.m., he along with PW2 Sameer Burney and other officials of the complainant company inspected the inspected premises. The three shops in the inspected premises were used for welding work, repairing of tyres and painting work. There was no electricity meter at site. The electricity was used for running the welding shop by tapping L V mains of the complainant with the help of wires. There was a total connected load of 10.049 KW for non domestic purposes. The photographs were taken which were downloaded in CD Ex.CW2/F. The CD is identified by him. Inspection report, meter details report and load report Ex.CW2/AC were prepared and offered to the accused who refused to receive and sign the same. Likewise is the CC No. 97/11 Page 4 of 9 testimony of PW2 in his examination in chief.
5. During cross examination, PW1 stated that there were three shops. The inspection was carried out at 4.15 p.m. and it might have been recorded inadvertently as 2.15 p.m in his examination in chief. The address of the shops was not noted down as it was not reflected on the board. Accused told that they are users of the shops but he does not know whether they are tenants or owners. The wires were coming to the shop of Prakash. He cannot give any reason why Prakash is not covered in CD. It is correct that no documents pertaining to ownership is placed on record.
6. During cross examination PW2 stated that they tried to ascertain the names of the owners of the shops. They could not seize any illegal material from the site due to non availability of Police. It is correct that accused is not covered in the photographs. It is correct that users are not covered in CD. The suggestion is denied that photographs reflected in CD do not pertain to the inspected shops.
7. PW3 Pankaj Tandon stated that he is authorized by the complainant company to sign, file and proceed with the complaint Ex. CW1/B on the basis of authority Ex. CW1/A given to him by the complainant.
8. The accused has led defence evidence. DW1 Ravinder CC No. 97/11 Page 5 of 9 stated that he knows the accused since childhood. The accused is an agriculturist who owns around 45 kilas of land situated at Village Jharoda Kalan, New Delhi. The accused is not engaged in any other work.
9. During cross examination, he stated that he has been working with DTC on contract basis. He is not aware about the place where the raid conducted by the complainant.
10. DW2 Abhishek, LDC, Najafgarh Zone, MCD stated that shops number 2 to 4 are situated in front of Suraj Cinema, Dhansa Road, Najafgarh which belongs to Trilok Chand, Suresh Kumar and Jaswant Singh. The shop of Trilok Chand and Jaswant Singh have been lying sealed since 31.12.2009.
11. During cross examination, he admitted that these shops are allotted by MCD which can only be used by family members and cannot be given on rent. He cannot tell the names of the person who were using the shops on 12.09.2008. He does not know the manner or mode of using the electricity.
12. I have heard ld counsel for complainant, ld counsel for accused and perused the record. The complainant has to link the accused with the inspected premises either as a owner or user. The complainant has to show that accused was responsible for committing CC No. 97/11 Page 6 of 9 theft of electricity in the inspected premises.
13. Regulation 2 (i) of the Delhi Electricity Regulatory Commission (Performance StandardsMetering and Billing) Regulations, 2002 defines direct theft as an abstraction of electricity meter either through bypassing the meter by some arrangement external to it or through unauthorized tapping of supply from licencee's distribution networks. To prove the factum of direct theft, the complainant has examined three witnesses. The complainant has placed heavy reliance on the testimony of PW1 and 2. I have perused the entire evidence on record. The identity of inspected premises is the foremost requirement to prove the case. The inspected premises is allegedly situated in front of Suraj Cinema and near Fire Brigade Station. The complainant has placed CD Ex.CW2/F on record. The CD is not proved in accordance with law but it can be used against the complainant. It is nowhere discernible from CD that the shops shown in the CD are situated in front of Suraj Cinema or Fire Brigade Station as CD nowhere shows the existence of Suraj Cinema or Fire Brigade Station. The municipal numbers are not even covered in the CD. The testimony of DW2 shows that shops number 2 to 4 are situated in front of Suraj Cinema which belong to Trilok Chand, Suresh Kumar and Jaswant Singh. The shops of Trilok and Jaswant Singh CC No. 97/11 Page 7 of 9 have been lying sealed since 31.12.2009. The testimony of DW2 shows that there are three shops with municipal numbers in front of Suraj Cinema. No question or suggestion is put to him that there are three other shops i.e. inspected premises besides the shops number 2 to 4. The absence of any question to this effect means that there are three shops number 2 to 4 in front of Suraj Cinema which are owned by different persons. The complainant could have examined anyone of them to prove that accused is user of one of the shops. No explanation is forthcoming why anyone of them is not examined by the complainant. Their non examination calls for an adverse inference against the complainant. There is nothing on the record that accused is user of one of the shops number 2 to 4 situated in front of Suraj Cinema. No other evidence is led by the complainant to show that inspected premises is besides the shops number 2 to 4 situated in front of Suraj Cinema, Dhansa Road, Najafgarh, New Delhi. The complainant has failed to prove the exact location of the inspected premises.
14. There is no identification of the accused in the court. The identification of the accused is must in the absence of any documentary evidence to the effect that accused is owner or user of the inspected premises. NO question or suggestion is put to PW1 and CC No. 97/11 Page 8 of 9 2 that accused is present in the court. There is no identification of the accused in the court. The accused cannot be connected with the offence in question in the absence of identification.
15. The alleged wires used for tapping the electricity from L V mains were not seized. No attempt was made even to seize the wires. No plausible explanation has come on record why the wires were not seized from the spot. The non seizure calls for an adverse inference against the complainant.
16. The defence of the accused is that he is an agriculturist does not find support from the record as accused has not placed khatoni of his land to show that some land is owned by him. Mere words of the mouth of DW1 cannot be relied upon.
17. The initial burden to prove the theft of electricity by the accused is on the complainant. The complainant has failed to discharge the onus. The inevitable conclusion is that complainant has failed to prove the allegations that accused was user of one of the shops situated in the inspected premises. The accused is not duly identified in the court.
18. In the light of my aforesaid discussion, I have no hesitation to hold that complainant company has failed to bring home the guilt against the accused beyond shadow of reasonable doubt and CC No. 97/11 Page 9 of 9 accordingly accused is acquitted of the offence charged. The amount, if any, deposited by accused be returned back to him with an interest of 6 % from the date of deposit of the amount till its return. File on completion be consigned to record room.
Announced in the open
Court on dated 12.02.2013 (Suresh Kumar Gupta)
ASJ: Special Electricity Court
Dwarka: New Delhi
CC No. 97/11