Delhi District Court
Complainant vs Master Daya Chand Yadav ... on 15 September, 2014
Page 1 of 12
IN THE COURT OF SURESH KUMAR GUPTA: ADDITIONAL
SESSIONS JUDGE, SPECIAL ELECTRICITY COURT,
DISTRICT COURT DWARKA, NEW DELHI
CC No. 151/12
ID No. 02405R0090702012
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. Master Daya Chand Yadav .................... Accused
S/o Ranjeet
2. Ranjit ....................Complaint
dismissed
at:
Khasra No. 33/21,
Near BSES Pole No. NJFT571,572
Kangan Hari Village,
Near Shamshan Ghat,
New Delhi110043.
CC No.151/12
Page 2 of 12
Date of institution: ................... 10.05.2012
Arguments heard on: ................... 09.09.2014
Judgment passed on : ................... 15.09.2014
Final Order: .................... Acquitted
JUDGMENT:
1. The brief facts of the case are like this. On 17.11.2011 at 3 pm a joint inspection team headed by Sh. Mukesh Chandra, Senior Manager (Enforcement) of the complainant company inspected the premises bearing Khasra No. 33/21, Near BSES Pole No. 571572, Village Kanganheri, Near Shamshan Ghat, New Delhi (hereinafter referred to as inspected premises). The accused No. 1 is user of the inspected premises where one electricity meter No. 27058234 is installed in the name of accused No. 2. The accused were indulging in the direct theft of electricity from pole no. NJFT571 of the complainant with the help of black core cable which was further connected to tube well. A connected load of 11.190 KW was found for agricultural purposes against a sanctioned load of 2.24 KW. The video of the inspected premises was taken and CD was prepared. The wire was removed and taken into possession. Inspection report, meter details report, load report and seizure memo were prepared and offered to the accused who refused to receive and sign the same. An CC No.151/12 Page 3 of 12 assessment bill for theft of electricity was raised against the accused which remained unpaid. Hence, this complaint.
2. Accused No. 1 was summoned for the offence U/s 135 of Electricity Act (herein after referred to as Act) on the basis of pre summoning evidence. The complaint against accused No. 2 was dismissed vide my separate order dated 08.1.2013. 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 he has taken the defence that no inspection was carried out. There is one motor of 5 HP. However, he has examined one witness in defence evidence.
4. PW1 Mukesh Chandra stated that on 17.11.2011 at 3 pm he along with PW3 Ashok Kumar videographer and other officials of complainant company has inspected the inspected premises being used by accused Master Daya Chand where one meter was installed in the name of Ranjeet. The accused were indulging in direct theft of electricity from the pole of the complainant with the help of wires. A CC No.151/12 Page 4 of 12 connected load of 11 KW was found for agricultural purposes. Three core black colour copper wire of 10 sq mm measuring 5 metres was removed and taken into possession vide separate seizure memo. Video of the premises was taken by PW3 but complete video could not be taken due to sensitive area. CD mark X was prepared. He has identified the contents of CD which were recorded at the time of inspection. Inspection report, meter details report, load report and seizure memo Ex. CW2/AD were prepared and offered to accused who refused to receive and sign the same. One sealed guny bag is produced and opened in the court. Black colour three core cable of 10 sq mm measuring around 5 metres along with carbon copy of seizure memo is taken out. The wire Ex. P1 is the same which was seized from the site and carbon copy of seizure memo is Ex. P2.
5. During crossexamination, he stated that no revenue record is placed on the record to show that accused is owner of this khasra number. It is admitted that kothra could be located anywhere but they have taken the video of nearby pole. It is correct that no document is placed on record to show that the said electricity pole is near the alleged inspected premises. It is correct that electricity meter No. 27058234 is not shown in video. The load was assessed by clip on CC No.151/12 Page 5 of 12 meter but same is not covered in video. The motor and meter bypass are not covered in video. The serial number of the motor was not recorded. The meter, service line or any changeover switch are not seized. The words like iska kothra khula hai ya band hai'' and "ye pole dikha de and cable dikha de" are audible from video clip but he does not know who has spoken these words. The suggestion is denied that there are words like " iska meter number badal" and "Gagan se la ke de doonga" are in the video clip. The kothra was lying closed. He did not see that said meter was installed at the alleged inspected premises. It is correct that documents are prepared by different team members. It is correct that tubewell is not covered in video.
6. PW2 Pankaj Tandon stated that he is authorized representative of the complainant. The Board of Directors of complainant company has passed a resolution Ex.CW1/A in a meeting dated 22.03.2006 vide which Sh Lalit Jalan has been authorized to further to delegate any of his powers to authorized representative to conduct and pursue the cases before Special Electricity Court. He has been duly authorized by Sh Lalit Jalan vide authority letter Ex. CW1/B. He has filed the complaint Ex. CW1/C on the basis of authority given to him by the complainant. CC No.151/12 Page 6 of 12
7. PW3 Ashok Kumar is a videographer. He stated that on 17.11.2011 he along with officials of the complainant has visited the inspected premises to take its video. He has taken the video of the inspected premises and handed over the cassette and camera to Sh Vicky Arora in the studio who has prepared the CD. He has identified the contents of CD as same were recorded at the time of inspection.
8. During crossexamination, he stated that there is audio in the video clip. He cannot say who has uttered the words "iska meter number badal" and "Gagan se la ke de doonga" .
9. Accused has led defence evidence. DW1 Mahinder Pal, Deputy General Manager, Finance, BRPL stated that he has brought the summoned record of meter No. 27058234 installed at the premises bearing Khasra No. 33/21, Village Kanganheri, New Delhi in the name of Ranjeet. The said record is Ex. DW1/A. The meter has started functioning since 23.03.2005.
10. During crossexamination, he admitted that no units will appear in the billing data if consumer/user is engaged in the direct theft of electricity from the pole of BSES.
11. I have heard ld counsel for complainant, ld counsel for accused and perused the record. The complainant has to prove that CC No.151/12 Page 7 of 12 accused is either owner or tenant of the inspected premises. The complainant has to show that accused was dishonestly indulging in theft of electricity from licensee distribution network.
12. The complainant has examined three witnesses in order to prove its case whereas accused has examined one witness in order to advance his defence. The testimony of PW1 is material as he is the incharge of joint inspection team. I have perused his testimony. His testimony shows that pole number NJFT571 is installed near inspected premises. The complainant has failed to prove this fact. The complainant could have proved this by producing document this pole number is installed in Khasra No.33/21, Village Kanganheri, New Delhi i.e. inspected premises but there is no evidence to this effect so the oral version to this effect cannot be relied upon.
13. The testimony of PW1 further shows that inspected premises was inspected and one electricity meter no. 27058234 was found installed. The accused has led defence evidence. The testimony of DW1 shows that one meter number 27058234 has been installed in Khasra No.33/21, Village Kanganheri, New Delhi (which is the inspected premises) in the name of Ranjeet and record to this effect is DW1/A. It is clear from the defence evidence that one meter has been CC No.151/12 Page 8 of 12 installed in the inspected premises in the name of Ranjeet.
14. The testimony of PW1 shows that meter was by passed and accused was indulging in the theft of electricity from the pole of the complainant. The complainant has placed CD mark X on record to show that there was tapping of electricity from the pole. The complainant has not proved the CD in accordance with law but at the same time it can be read against the complainant. It is nowhere discernible that this CD pertains to the inspected premises. The meter is nowhere shown in the CD. CD does not show that meter has been by passed. PW1 has admitted that he has not seen the meter at the inspected premises so to my mind it cannot be said that accused was not using the meter in order to consume the electricity or meter was by passed by the accused. There is no explanation why the meter was not removed if it was by passed or not in use and non explanation calls for an adverse inference against the complainant.
15. The video is showing one kothra. PW1 has admitted that kothra was lying closed so there is nothing on record what was inside the kothra or whether it was situated in the inspected premises allegedly under the use of accused.
16. The CD nowhere shows that it pertains to inspected CC No.151/12 Page 9 of 12 premises. It is nowhere discernible from the video in the CD that video of inspected premises was taken.
17. The allegation against the accused is that electricity was tapped in order to run the tubewell. This fact is not proved by the complainant. PW1 has omitted to depose that illegal wires from the pole were allegedly connected to run the tuebewell. He has omitted to depose this material fact which amounts to contradiction and goes to the root of the case. There is nothing in CD that the wires allegedly coming from the pole were connected to the tubewell. The tubewell is nowhere shown in the CD. The complainant has to show that wires were found connected to tubewell but evidence to this effect is missing.
18. The testimony of PW1 shows that documents were prepared at the time of inspection and offered to the accused. This fact is not proved in evidence on record. The complainant has placed annexure B on record. This document is not proved by the complainant but it can be read against the complainant. This document shows that consumer does not exist. The question of offering the document to consumer Ranjit does not arise when he does not exist. Ld counsel for accused Master Daya Chand submitted that CC No.151/12 Page 10 of 12 Ranjit has expired in the year 1982 and Master Daya Chand is son of deceased Ranjit. This fact is nowhere controverted by the complainant. All these show that question of offering the documents to Ranjit does not arise at all. Further, the documents do not bear the words " refused to sign by Master Daya Chand and Ranjit". There is no explanation why these words do not find reflection in the documents. The documents were not pasted at site or sent by post to the accused. It becomes clear that documents were not prepared at the time of inspection and all the regulations framed under Delhi Electricity Supply Code and Performance Standards Regulations, 2007 have been thrown to the wind.
19. Ld counsel for the accused submitted that CD bear the words iska number badal Gagan se lakar de dunga, iksa kothra khula hai ya band, ye cable dikha de and pole dikha de. He further submitted that officials of the complainant have tried to manipulate the things in the CD in order to implicate the accused though ld counsel for the complainant has urged to the contrary. Heard and perused the record. I have seen the CD. There is some audio in the video clip. The CD shows one kothra which is lying closed. The words "iska number badal and Gagan se lakar de dunga". The complainant has to show CC No.151/12 Page 11 of 12 who has uttered these words but complainant has failed to clarify this fact. Moreover, the meter number can never be changed once a meter with particular number is installed at a particular premises. The CD shows the cable and pole so uttering of the words like 'cable dikha de and pole dikha de' does not cause any prejudice to the accused. To my mind, accused has failed to show that complainant has tried to manipulate the CD. The arguments do not hold water.
20. Ld counsel for the accused contended that no reliance can be placed on the CD mark X as it is not proved in accordance with law. Ld counsel for the complainant urged to the contrary. Heard and perused the record. The complainant has placed CD mark X on record in order to show the manner of theft in the inspected premises. PW3 has taken the video but he has not prepared the CD. The person who has downloaded the data in the computer and thereafter prepared the CD is not examined by the complainant. There is no evidence on record that the data was correctly downloaded by that person. There is no certificate on record to show that computer through which data was downloaded was working in the perfect condition. The original cassette is not placed on record. The CD is not proved in accordance with section 65B of Indian Evidence Act as such complainant cannot CC No.151/12 Page 12 of 12 draw any support out of it.
21. The evidence on the file is not enough to show that accused was indulging in the theft of electricity from the pole of the complainant.
22. 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 Master Daya Chand beyond shadow of reasonable doubt and accordingly accused Master Daya Chand is acquitted of the offence charged. The amount, if any, deposited by accused be returned back to him with an interest at the rate of 6 % per annum 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 15.09.2014 (Suresh Kumar Gupta)
ASJ: Special Electricity Court
Dwarka: New Delhi
CC No.151/12