Delhi District Court
Complainant vs Mukul ................... Juvenile In ... on 28 January, 2014
Page 1 of 16
IN THE COURT OF SURESH KUMAR GUPTA: ADDITIONAL
SESSIONS JUDGE, SPECIAL ELECTRICITY COURT,
DISTRICT COURT DWARKA, NEW DELHI
CC No. 209/11
ID No. 02405R0855612
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. Mukul ................... Juvenile in conflict
with law
2. Jasbeer Singh ................... Accused
R/o House No. 125,
Village Nawada Extn.
Uttam Nagar,
New Delhi.
Date of institution: ........................ 19.09.2007
Arguments heard on: ........................ 21.1.2014
Judgment passed on : ........................ 28.1.2014
CC No. 209/11
Page 2 of 16
JUDGMENT:
1. The brief facts of the case are like this. On 15.05.2007 at 1.00 pm a joint inspection team headed by Sh. Rakesh RainaAsstt Manager (Enforcement) of the complainant company inspected the premises No.125, Village Nawada Extension, Uttam Nagar, New Delhi (hereinafter referred to as inspected premises). The accused are users of the inspected premises. Accused no. 1 is also the registered consumer. 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 further connected to the inspected premises. The ladies present at the site did not allow the joint inspection team to enter the premises. The load of the portion of the premises was assessed as per statement given by the accused. The complete photographs were not taken due to resistance created by the consumer. The video of the premises was also taken. The yellow and black colour wires were removed and seized but meter could not be seized due to resistance created by the accused. A connected load of 22.68 KW was found for nondomestic purposes. Inspection report, load report and seizure memo 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 CC No. 209/11 Page 3 of 16 unpaid. Hence, this complaint.
2. Accused were summoned for the offence U/s 135 of Electricity Act (herein after referred to as Act) on the basis of pre summoning evidence. Copy of complaint and documents were supplied to them. Accused No.1 was declared juvenile in conflict with law and accordingly complainant was directed to separate his complaint and submit the same before Juvenile Justice Board, Delhi Gate, New Delhi.
3. NOA U/s 251 Cr.P.C was put to the accused no. 2 to which he pleaded not guilty and claimed trial.
4. The complainant examined three witnesses. Complainant evidence was closed. Accused was examined U/s 313 Cr.P.C. The application u/s 311 Cr PC of the complainant was allowed. PW3 was examined. The supplementary statement of the accused u/s 313 Cr PC was recorded. His defence is of denial simplicitor. However, he has examined four witnesses in defence evidence.
5. The complainant has examined three witnesses. PW1 V P Yadav stated that on 15.05.2007 at 1.00 pm he along with other officials of the complainant company has inspected the inspected premises being used by accused Jasbir Singh. One electricity meter CC No. 209/11 Page 4 of 16 was found installed in the name of Mukul at the time of inspection. The accused Jasbir Singh along with some ladies was present at the time of inspection who is duly identified by him. The accused was indulging in direct theft of electricity by tapping electricity from L V mains of the complainant with the help of wires which were connected to the load of the premises. The outgoing of the meter was disconnected. There was a total connected load of 22.68 KW for domestic and commercial purposes. One tailoring shop and PC booth were found in the premises. The photographs Ex.CW2/5 were clicked at the time of inspection which are identified by him as clicked at site. The video of the inspected premises was taken and CD Ex. PW1/A was prepared. The photographs in the CD have been identified by him. Two faded yellow and black colour aluminum wires were removed and taken into possession vide separate seizure memo Ex. CW2/3 but they could not seize the meter due to resistance created by the accused. The wires Ex. P1 along with carbon copy of seizure memo Ex. P2 are produced in the court. The wires are duly identified by him as removed and seized from the site. Inspection report, meter report, load report and seizure memo Ex.CW2/14 were prepared and offered to the accused Jasbir who refused to receive and CC No. 209/11 Page 5 of 16 sign the same.
6. During crossexamination, he stated that photographs were not taken in his presence. The photographs were already taken when he was standing outside the premises. He was in the locality. House No. 125 is not focused in any of the photographs. The photograph showing B36 is a nearby premises. The team went inside the premises. The photographs of the accused were not taken. He cannot tell if the premises belong to accused Jasbir but he was user of the premises as accused himself disclosed that he is user of the premises and another lady confirmed this fact. The photographs/video of public persons was not taken. The meter was not seized due to resistance. He is not aware if complaint dated 27.2.2007 and other complaint dated 16.4.2007 vide application No. E265007040577 were given by Mukul to the complainant. The suggestion is denied that accused was not present at the spot that is why his photographs were not taken or photographs pertain to premises No. B36, Nawada Extension or accused is not the user of the inspected premises or accused is resident of village Dujana, Jhajjar, Haryana or no inspection was carried out.
7. PW2 Pankaj Tandon stated that he is authorized by the CC No. 209/11 Page 6 of 16 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. PW3 Naresh Kumar, Incharge Records, BSES RPL stated that he has brought the K Number file Ex. PW3/A (collectively) of Mukul son of Sh Birender Singh. The connection was given on 23.07.2004 vide application No. N265004070639. During cross examination, he stated that there is no signature of accused Jasbeer on record.
9. The accused has led defence evidence. DW1 Sanjay Verma stated that he has been residing at Village Nawada since his birth. He knows the accused Jasbeer since his birth. Accused Jasbeer, Mehtab Singh, deceased Virender Singh and Vijender Singh are four brothers who have been residing separately since 1995 due to family settlement. A plot measuring 30003500 sq yards was divided equally in four portions. The portion of Jasbeer was lying vacant whereas other three are built up portions. There is a common plot No. i.e 125. Chaudhary Jagmohan Singh, Uncle of Jasbir, is also having a plot adjacent to abovestated plot which also bears the number 125. The accused Jasbir is residing in the portion of his father after family CC No. 209/11 Page 7 of 16 settlement. Accused Jasbir had been residing at Village Dujana, Jhajjar, Haryana from 20032010. Accused Jasbir has never resided with the family of deceased Virender Singh who is father of Mukul.
10. During crossexamination, he stated that he is not a summoned witness. he has not brought any document to show family settlement. He cannot produce any document that accused Jasbir was residing in Haryana from 20032010.
11. DW2 Dalbir Singh stated that he has been residing at Village Dujana since 195960. The father of accused Jasbir was having 15 acres of land out of which 3 acres of land has come to the share of accused. Accused Jasbir has resided in the village for about 1011 years i.e from 20032010. The father of the accused has fallen ill in 2010 so accused came back to village Nawada to look after his ailing father.
12. During crossexamination, he stated that he is not a summoned witness. He cannot produce any document that accused has resided at Haryana from 20032010.
13. DW3 Naresh Kumar, Record Incharge, BSES RPL stated that Ex. DW3/A and B are the consumer applications bearing No. 103209088 and 103252674. No crossexamination was done though CC No. 209/11 Page 8 of 16 the opportunity was granted.
14. DW4 Jasbir Singh is accused. He stated that Mukul is his nephew. Deceased Virender Singh, father of Mukul, expired in 1990. They are four brothers including deceased Virender. There was a family settlement in 1995 and since then all of them are residing separately. He has resided at Village Dujana, District Jhajjar, Haryana from 2003 2010. He used to look after the agricultural land. His father was having 3200 sq yards of residential land at Village Nawada which was divided 5 equal parts before the death of his father. The share was divided into 4 equal parts after the death of his father. Mukul was having a separate house who was residing with his family. He has no concern with the inspected premises. He was not present at the time of raid at Village Nawada as he was residing at Village Dujana.
15. During crossexamination, he admitted that he has not placed any document to show that there was a family settlement among his brothers in 1995. He admitted that he has not placed any document on record to show that he resided in Haryana from 20032010. He has not placed any electricity bill pertaining to any other premises to show that he was residing somewhere else. CC No. 209/11 Page 9 of 16
16. 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 theft of electricity in the inspected premises.
17. The complainant has examined three witnesses in order to prove its case whereas accused has examined four witnesses including himself as DW4 in order to advance his defence.
18. Ld counsel for the complainant contended that accused is the user of the inspected premises who was indulging in direct theft of electricity from nearby LV mains of the complainant by bypassing the meter. He further contended that PW1 has fully supported the case of complainant and his testimony should be relied upon. Ld counsel for the accused contended that PW1 is not a witness to the alleged inspection. He further contended that accused is not the user of the inspected premises as it was under the use of his deceased brother Virender Singh after the family settlement in the year 1995. He further contended that Mukul was the user of the inspected premises and he used to reside at Village Dujana, District Jhajjar, Haryana at the time of inspection in order to look after his agricultural land. CC No. 209/11 Page 10 of 16
19. Heard and perused the record. The case of the complainant is that on 15.5.07 at 1:00 pm an inspection was carried out b y the members of joint inspection team in the inspected premises where there was theft of electricity from LV mains of the complainant by bypassing the meter by the user. The lonely ladies consumer present there did not allow them to enter and asses the load of a particular portion of the premises and load of that portion was assessed as per the statement given by the consumer. The complainant has examined three witnesses. PW1 is allegedly the member of joint inspection team. PW2 is authorized representative of the complainant who has filed the complaint. PW3 has brought the record Ex. PW3/A to show that meter was installed in the inspected premises in the name of Mukul. I have perused the testimony of PW1. To my mind, PW1 is not a witness to the inspection. He was in the locality at the time of inspection and this fact is apparent from the record itself. The page 2 of the inspection report shows that the inspection was carried out as per the directions of Manager (Enforcement). PW1 was Manager (Enforcement) at that time. There was no need to reflect that inspection was carried out as per the directions of Manager (Enforcement). It should have been reflected that he is one of the CC No. 209/11 Page 11 of 16 members of joint inspection team. The inspection report Ex. CW2/1 load report Ex. CW2/2 and meter details report Ex. CW2/4 were allegedly prepared by the other members of the team at the time of inspection. All these documents do not bear his name and signatures, though it bear the signatures of other team members. The complainant has failed to explain why his name and signatures are not on all these documents if he was a member of joint inspection team. Seizure memo Ex. CW2/3 bears the signature of PW1. The complainant has failed to explain why PW1 did not sign the other documents when he can sign the seizure memo. It shows that he was called later on by the members of the joint inspection team in order to effect seizure of the case property. This fact gets support from the crossexamination of PW1 wherein he has deposed that he was in the locality. Further, he has deposed in the crossexamination that the team went inside the premises. The photographs were not taken in his presence. Some photographs were already taken when he was standing outside the premises or before he reached at the spot. All this further strengthens the view that members of joint inspection team did not carry out the inspection along with PW1 rather he was called later on by the team members in order to effect the recovery of CC No. 209/11 Page 12 of 16 the wires.
20. The testimony of PW1 shows that accused Jasbeer is the user of inspected premises. Accused Jasbir has taken the defence that he was resident of Village Dujan, District Jhajjar, Haryana at the time of inspection. He has further taken a defence that inspected premises has fallen to the share of deceased father of Mukul and Mukul was residing in the inspected premises at the time of inspection. Heard and perused the record. A bare perusal of inspection report Ex. CW2/1 shows that Jasbir and Mukul (juvenile in conflict with law) are the users of the inspected premises. Mukul was declared juvenile in conflict with law on 5.10.2011 and complainant was directed to separate his complaint and submit the same before Juvenile Justice Board, Delhi Gate. The K No file Ex. PW3/A shows that meter was installed in the inspected premises in the name of Mukul. The accused Jasbir has examined DW1, 2 and himself as DW4 to show that he was resident of Village Dujana at the time of inspection. DW2, who is resident of Village Dujana, has categorically stated that accused used to reside at Village Dujana from 2003 to 2010. His testimony is corroborated by DW1 who is resident of Village Nawada, Uttam Nagar. There is nothing on the record to view the testimony of DW1 CC No. 209/11 Page 13 of 16 and 2 with the aid of spectacles as complainant has failed to elicit anything during their crossexamination that accused never resided at Village Dujana. The testimony of DW1, 2 and 4 shows that accused also used to reside at village Dujana, Distt Jhajjar, Haryana at the time of inspection.
21. The inspection was carried out in the premises where meter was installed in the name of Mukul. There is no evidence on record that accused Jasbeer used to reside with Mukul in the inspected premises.
22. A bare perusal of inspection report shows that lonely ladies were present. The name of Jasbir (as stated) finds reflection in the column No. 2.4 of the inspection report. The complainant has failed to explain who has stated that accused Jasbir is also the user of the inspected premises. It is nowhere reflected in the inspection report that lonely ladies disclosed the name of accused Jasbir as user of the inspected premises. It is nowhere reflected in the inspection report that accused met them at the time of inspection who disclosed that he is user of the inspected premises. The other members of joint inspection team are not examined by the complainant. They have prepared the inspection report, load report and meter details report. CC No. 209/11 Page 14 of 16 Their examination was essential to prove these documents. The documents do not stand proved as PW1 is not a scribe of all these documents. The examination of team members was essential to prove the documents and its contents. Their nonexamination calls for an adverse inference against the complainant. There is no other witness in order to corroborate the fact that PW1 was with them at the time of the inspection of the inspected premises. To my mind, PW1 is not a witness to the inspection. There is no convincing evidence that accused is user of inspected premises or he was present at the time of inspection.
23. The load report is Ex. CW2/2. A bare perusal of inspection report Ex. CW2/1 shows that ladies did not allow them to enter and assess the load of portion of the premises and load of that portion was recorded as per statement given by the consumer. There is no evidence that which particular portion of the inspected premises was not allowed to be assessed by the ladies. There is no circuit diagram to this effect on page 3 though the circuit diagram at Page 3 does not corroborate this fact. There is nothing on the record that ladies have disclosed that particular appliances are lying in that particular portion. All this shows that load report is not properly CC No. 209/11 Page 15 of 16 prepared by the team members. To my mind, the load report is defective which cannot be relied up on.
24. The testimony of PW1 shows that there was resistance and that is why they could not remove the meter. The factum of resistance finds reflection in the inspection report Ex. CW2/1 but the kind of resistance is not shown in the inspection report. There should have been specific evidence that the resistance was of a particular kind which prevented them from removing the meter. The members of joint inspection team can remove the wires but it is quite surprising that there was resistance at the time of removal of the meter. The explanation for the nonremoval of meter does not appear to be convincing and there is no plausible explanation for the nonremoval of the meter.
25. PW1 is not a witness to the inspection. He is a witness to the seizure memo as such his testimony to the effect that inspection was carried out in his presence is not relied upon. The team members, who have carried out the alleged inspection, are not examined by the complainant. There is no evidence that accused Jasbeer was user of the inspected premises at the time of inspection. There is no evidence that accused was indulging in the alleged theft of electricity in the CC No. 209/11 Page 16 of 16 inspected premises.
26. In the light of my aforesaid discussion, I have no hesitation to hold that complainant company has failed to bring home the guilt against accused beyond shadow of reasonable doubt and accordingly accused is acquitted of the offence charged. The amount deposited by accused be returned back to him with an interest of 6 % from the date of deposit of the amount till its return after the expiry of the period meant for appeal.
File on completion be consigned to record room.
Announced in the open
Court on dated 28.01.2014 (Suresh Kumar Gupta)
ASJ: Special Electricity Court
Dwarka: New Delhi
CC No. 209/11