Delhi District Court
Bses vs . Mohd. Arif, Cc No. 135/12 Page No. 1 Of 11 on 1 April, 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. : 135/12
Police Station : Jaitpur, New Delhi
U/s : 135 of Electricity Act, 2003
Unique ID No. : 02406 RO154822012
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
Mohd. Arif
S/o Shri Basir Ali
R/o 30, Ground Floor,
Madanpur Khadar Extn. Part III,
Gali No. 6, Sarita Vihar,
New Delhi - 110 076
...Accused
Appearances : AR with Shri Rajesh Kumar, counsel for complainant.
Accused Mohd. Arif produced from J.C. Along with
Shri A.A. Khan, Ld. Amicus Curie.
Complaint instituted on : 23.04.2012
Judgment reserved on : 25.03.2014
Judgment pronounced on : 01.04.2014
JUDGMENT
BSES Vs. Mohd. Arif, CC No. 135/12 Page no. 1 of 11 2
1. The case of the complainant in brief is that on 16.01.2012, the officers of the complainant company namely, Shri Farhan Ullah KHan - Assistant Manager, Shri Prayag - Engineer and Shri Virender Singh - Lineman conducted inspection at premises i.e. House No. 30, Ground Floor, Madanpur Khadar Extn. Part III, Gali No. 6, Sarita Vihar, New Delhi - 110076 and and accused Mohd. Arif was found indulged in direct theft of electricity by tapping from BSES pole DB through illegal wires and using total connected load of 9.588 KWs for domestic purpose. It is further mentioned in the complaint that inspection team seized illegal wires used in committing direct theft of electricity. It is further mentioned in the said complaint that the inspection report, load report and seizure memo were also prepared at the site and necessary 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 and tariff order was raised by the complainant for Rs.1,21,493/ with due date as 02.02.2012 and same was served upon the accused but he failed to pay the said theft bill.
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3. The case was fixed for presummoning evidence and accused was summoned to face the said allegations vide order dated 05.07.2012 and vide order dated 03.01.2014 notice U/sec. 251 Cr.P.C. for commission of offence punishable u/s. 135 the Electricity Act, 2003 was framed against accused Mohd. Arif, to which he pleaded not guilty and claimed trial on the ground that he was not committing any theft of electricity and that a false and fabricated case has been made out against him and that he is not liable to pay any loss or damage to the complainant company.
4. In order to prove the case of the complainant, three witnesses were produced, which have been discussed below.
5. The statement of the accused Mohd. Arif was recorded u/s. 313 Cr.P.C. and accused pleaded his innocence and denied the evidence as false and answered that he was resident of House NO. 203204, Ground Floor, Madanpur Khadar, Extn. Part III, Gali No. 6, Sarita Vihar, New Delhi, whereas in the inspection report the address is mentioned as House no. 30, Ground Floor, Madanpur Khadar, Extn. Part III, Gali No. 6, Sarita Vihar, New Delhi and that he had applied for connection and officials of the complainant company had come to verify his premises and demand note was BSES Vs. Mohd. Arif, CC No. 135/12 Page no. 3 of 11 4 also raised, which was depicted in the videography. Accused further answered that used and unused components were counted simultaneously by the raiding team and that no document was prepared at the spot in his presence and that all the documents were prepared at the office of the complainant company. However, the accused did not opt to lead defence evidence.
6. I have heard the counsel for the complainant and counsel for the accused, Shri A.A. Khan, Amicus Curie Advocate. I have also perused the record including the CD of videograpy displayed on the computer screen of the court.
7. PW1 Shri Prayag Dutt Sharma was the Engineer of the complainant company, who deposed that on 16.01.2012 at about 2.45 p.m., he along with Shri F.U. Khan, Shri Virender, Shri Juben visited and inspected the premises bearing house no. 30, Madanpur Khadar Extn., Part III, Gali no. 6, Near Makki Masjid, New Delhi 76 and that on reaching the said premises, they found that there was no meter installed and the supply of electricity was being run directly by directly tapping from BSES pole with the help of illegal wire, which was further connected to connected load of the premises and that the accused Mohd. Arif was committing direct BSES Vs. Mohd. Arif, CC No. 135/12 Page no. 4 of 11 5 theft of electricity at the time of inspection and that they assessed the connected load of the premises, which was found to be approx. 9.588 KWs for domestic purpose. PW1 further deposed that they disconnected the supply of electricity, which was directly connected and that they removed and seized the illegal wire. PW1 proved the the inspection report including meter details, load report and seizure memo as Ex. CW2/1, CW2/2 and Ex. CW2/4. PW1 further deposed that they offered the said documents to accused Mohd. Arif to sign and receive but he refused to do so. PW1 also identified the accused who was present in the court on the day of his deposition. PW1 further proved the seized material i.e. one blue colour multi strand copper wire of size 1 mm.sq. and in length approx. one feet and one yellow colour multi strand copper wire of size 2.5 mm.sq. and length approx. one feet, collectively as Ex. P2. PW1 identified the videography as contained in the CD and he proved the same as Ex. CW2/3.
8. In his cross examination on behalf of the accused, PW1 admitted it as correct that the preparation of documents was not captured in the videography. PW1 replied that the distance between the BSES pole and the premises in question was about 4 meters. PW1 admitted it as correct that they had cut the illegal wire BSES Vs. Mohd. Arif, CC No. 135/12 Page no. 5 of 11 6 as much as possible upto approachable length and that the said wire Ex. P2 (colly.) was not of the complainant company and that same was easily available in the open market. PW1 pointed out accused Arif in the said videography, who was depicted in the videography. PW1 further admitted it as correct that only application for new connection was depicted in the videography. PW1 replied that the accused had shown the said document at the spot. PW1 had no no knowledge as to why the meter was not installed at the said premises.
9. PW2 Shri Virender Singh in his examination in chief, narrated the same facts, as deposed by PW1 and his cross examination is adverbatim as that of PW1.
10. PW3 Shri Ashutosh Kumar, A.R. of the complainant company, is a formal witness, who proved his GPA Ex.CW1/2 and he further proved the complaint as Ex.CW1/1 and in his cross examination on behalf of the accused, he admitted that he has no personal knowledge of the case.
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11. During the course of trial, Ld. Defence Counsel submitted that he has no objection if the theft bill Ex.CW2/5 and the videography Ex.CW2/3 be read in evidence as it is and in view of the said submission of the Ld. Defence Counsel, said two documents are being read in evidence for the purpose of this judgment.
12. From the deposition of PW1 and PW2, the facts which have remained unrebutted on the record are that on 16.01.2012 at house no. 30, Ground Floor, Madanpur Khadar Extn., Part III, Gali no. 6, Near Makki Masjid, New Delhi 110076, an inspection was carried out and direct tapping of electricity was found with the help of illegal wire in the said premises and the said illegal wire was also seized and that accused Arif was depicted in the videography and identified by the said witnesses.
13. It has been contended on behalf of the accused that the illegal wire collectively Ex. P2 was easily available in the market as admitted by PW1 and PW2.
14. The said argument is devoid of any merit on the ground that PW1 and PW2 were having no axe to grind against the accused so BSES Vs. Mohd. Arif, CC No. 135/12 Page no. 7 of 11 8 as to plant the illegal wire in the present case and further there is no law that seizure of the illegal wire is mandatory to prove the theft of electricity and if the otherwise evidence on the record is reliable and trustworthy, it can be relied upon in proof of said theft. Hence, the said argument is hereby rejected.
15. On the similar ground, the argument that photocopy of the seizure memo Ex. P1 was recovered from the bag, in which the illegal wire Ex. P2 was sealed and seized, whereas it should have been the carbon copy of the seizure memo, is baseless and is not sufficient to throw the case of the complainant on this ground alone and moreover, no question was put to the said witnesses as to how the photocopy was got done but only suggestion to that effect was given to the witnesses, which they denied as wrong.
16. In the said circumstances, I am of considered opinion that onus did shift upon the accused to rebut the presumption which has arisen against him under 3rd proviso to section 135 of the Electricity Act, 2003.
17. Accused is not supposed to rebut the presumption or to prove his defence "beyond reasonable doubt", but he has to show the BSES Vs. Mohd. Arif, CC No. 135/12 Page no. 8 of 11 9 probability of the existence of his defence from a prudent man's test only.
18. Let me now turn to the defence of the accused in the present case in order to know as to whether he has been successful in discharging his onus and to make believe this court the existence of his defence.
19. In reply to the notice u/s. 251 Cr.P.C., the accused baldly denied the theft of electricity being committed by him and he submitted that a false and fabricated case was made out against him.
20. In his statement u/s. 313 Cr.P.C., accused took the defence that he was resident of house no. 203204, Ground Floor, Madanpur Khadar Extn., Part III, Gali No. 6, Sarita Vihar, New Delhi, but in the inspection report, the address is mentioned as house no. 30, Ground Floor, Madanpur Khadar Extn., Part III, Gali No. 6, Sarita Vihar, New Delhi and it is further answered by him that he had applied for a new connection and some officials of the complainant company had come to verify the premises and a demand note was raised which was reflected in the videography.
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21. On the one hand, accused has denied to have any connection with house no. 30, Ground Floor, Madanpur Khadar Extn., Part III, Gali No. 6, Sarita Vihar, New Delhi, but on the other hand in the videography, an application for connection is visible and is specifically covered, wherein name of the accused is appearing and premises no. is the said house no. 30 i.e. the premises in question, where the inspection was carried out. Moreover, his claim that demand note was raised has nowhere been covered in the videography, but it is the application which has been covered only. If any demand note was raised, nobody stopped the accused to prove the same on the record. Even he has not proved the original application for new connection on the record as is depicted in the videography. He further failed to show any payment made by him against any alleged demand note for the installation of the new meter. Needless to say that accused did not produce any defence evidence also. In the said circumstances, not only the accused was well connected to the said house no. 30, but the manner in which he was found present in the premises in question and arguing with the members of the inspection team, as depicted in the videography, go to establish that he was the concerned person with the said premises in question and was the user of the premises in question also.
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22. In the said circumstances, I am of considered opinion that accused miserably failed to show any defence at all much less in rebutting the presumption as has been raised against him by the law.
23. In view of my said discussion, I am of considered opinion that complainant has been successful in proving the guilt of the accused beyond reasonable doubt and accused is held guilty and convicted u/s. 135 of the Electricity Act, 2003. His PB and SB, if any, are cancelled and discharged. The file be consigned to the record room.
Announced in the open ( RAKESH TEWARI )
court on 01.04.2014 ADDL. SESSIONS JUDGE
SPL. ELECTRICITY COURT
SAKET COURTS, NEW DELHI
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