Delhi District Court
Mishra In Cs No.1752 Of 2000 Titled As ... vs . Satish Mishra on 3 February, 2012
IN THE COURT OF SHRI NAROTTAM KAUSHAL, ADDL SESSIONS JUDGE,
THE SPECIAL COURT UNDER THE ELECTRICITY ACT 2003
SAKET COURTS, NEW DELHI
Complaint instituted on : 11.08.2008
Judgment reserved on : 13.01.2012
Judgment pronounced on : 03.02.2012
Complaint Case No. 466/08
PS Greater Kailash, New Delhi
U/s 135 of Electricity Act, 2003
BSES Rajdhani Power Limited
Having its registered office at
BSES Bhawan, Nehru Place,
New Delhi110019
Also at;
Corporate, Legal and Enforcement Cell,
Near Andrews Ganj Market,
New Delhi110049.
Acting through Sh. Ashutosh Kumar
(Authorized Representative)
...Complainant
Versus
Smt. Sarita Arora (User)
Address:C3, G/F, F/F, S/F, Greater KailashI,
Near MBlock Market, New Delhi ...Accused
Appearances : AR for the complainant
Sh. S.K.Alok, counsel for the complainant
Accused on bail with
Sh. B.S.Choudhary, counsel for the accused.
JUDGMENT
1 Complaint u/sec. 151 of the Electricity Act, 2003 (hereinafter called 'the Act') has been filed by the complainant company against accused Sarita Arora seeking to convict her for offence punishable U/sec. 135 of the Act and determination of her civil liability u/sec154(5) of the Act is also prayed for.
Page 1 of page 11 2 It is the case of the complainant that on 18.06.2008, at 01:40 PM, the premises bearing No.C3, Greater KailashI, Near MBlock Market, New Delhi, consisting of ground floor, first floor & second floor were inspected by the officials of the complainant company. The accused was found using electricity illegally by directly tapping from the Bus Bar of BSES. A total connected load of 49.854 KW for domestic use was recorded. Inspection report & load report were prepared at the spot. Photographs of the inspection were also taken and converted into a CD. On the basis of connected load, a theft bill of Rs. 6,08,358/ was raised. On failure of accused to deposit the bill, present complaint was filed seeking to convict her for offence punishable U/sec. 135 of the Act and determination of her civil liability u/sec154(5) of the Act.
3 Cognizance of the complaint was taken by the Ld. Predecessor of this court vide order dated 11.08.2008. Presummoning evidence was recorded and on the basis thereof, accused was summoned to face trial. On entering appearance accused was admitted to bail.
4 Notice of accusation was framed upon the accused on 15.04.2009 by Ld. Predecessor of this court. Accused pleaded not guilty and claimed trial.
5 Complainant in support of its case examined five witnesses. Sh. Maanas Dass (PW1), Sh. Nirmal (PW3) and Shyam Kumar (PW5) are the members of the raiding team who had inspected the premises on 18.06.2008. Sh. Binay Kumar - Authorized Representative was examined twice as PW2 & Page 2 of page 11 PW4. He has only proved the filing of complaint before the court and the authority bestowed upon him by the CEO of the company to file and pursue the complaint on behalf of the complainant company. Members of the raiding team have deposed that accused along with her daughter was present at the time of inspection. Accused joined the inspection for all the 3 floors at the premises in question. She was consuming electricity for the entire building by directly tapping from the BSES Bus Bar. There was no meter installed at site.
6 Incriminating evidence was put to the accused. She admitted her presence at the time of inspection. She stated that she was the attorney of her brother who was the owner of the premises in question. She was occupying only the first floor. Ground floor was occupied by the tenants and the second floor by her brother in law namely Sh. Satish Kumar Mishra. She denied the inspection on the first & second floor. She stated the load report to be excessive and exorbitant. She explained that she has been falsely implicated as she had filed civil cases against the company which were pending at Tis Hazari court, challenging the highly inflated bills raised by complainant company. The meter had been removed from her premises on 05.04.2008 by the employees of complainant company and a direct wire was connected to her premises by those officials assuring that a new meter will be installed shortly.
7 She sought opportunity to lead defence evidence and examined herself as DW1 and one Narsingh (Security Guard) as DW2. She deposed that she was in possession of only one floor, in which she had Page 3 of page 11 skeleton electrical equipments. The owner of the premises Ravinder Sethi (her brother) was an NRI. She has deposed that on 18.07.2008, Mr. Maanas Dass came to her and stated that electricity bills were pending towards her. She told him that she had filed a case before Civil Judge, Tis Hazari, challenging the inflated bills and shall make the payment after the decision of court. She also deposed that inspection had taken place only on ground floor. Narsingh (DW2) has deposed that in April2008 two persons came to the premises in question and removed the meter. They further told him that they had not disconnected the supply and it was directly coming to the premises. Subsequently on 11.04.2008 some more officials came and remained in the premises for about 2025 minutes. Again on 18.06.2008, three persons from electricity department took some photographs and went away.
8 Sh. S.K.Alok, Adv. on behalf of the complainant has argued that accused has not denied her presence at the time of the inspection. She has also been identified by the witnesses of the complainant. Her presence is also recorded in the videography of the inspection process. She has not disputed her possession of the first floor and being attorney of owner of premises. Complainant's witnesses have proved that there was no meter at the premises at the time of inspection. Accused has not proved any alternate source of energy. The case is thus, established against her. 9 Sh. B.S.Chaudhary, Ld. Counsel for the accused has argued that accused had filed four civil suits against the complainant company, which were pending before the Civil Courts at Tis Hazari. During the Page 4 of page 11 pendency of the civil suits, the meter could not have been removed and the inspection is, therefore, illegal. The load report Ex.CW2/3 relied upon by the complainant is not floor specific. Occupants of other floors have not been arrayed as accused persons. The photographs of different floors were not taken and placed on record. The photographs which have been placed on record, further, did not prove the possession. There is no evidence that the appliances shown to be connected were working. However, the meter had been removed by the officials of the complainant company namely Jaswant & Sudhir, on the pretext that the meter is faulty and with the assurance that new meter shall be installed shortly. As a temporary arrangement, these very officials had made a connection and restored electricity. Sh. Chaudhary has also referred to the application u/sec. 233 Cr.P.C. filed by the accused on 27.04.2011, whereby, photocopy of a will and photocopy of a Lease deed and certified copy of an application u/O 9 Rule VII CPC moved by one Sh.Satish Mishra in CS No.1752 of 2000 titled as Ravinder Sethi Vs. Satish Mishra pending before the Hon'ble High Court of Delhi have been filed. On the strength of above record, it is argued that accused was owner and possession of only the first floor. The ground or second floor were neither in her ownership nor under her use and occupation. Sh. Chaudhary has referred to order sheet dated 20.05.2011 whereby, the court had issued summons for Jaswant and Sudhir, as defence witnesses to establish that they had removed the meter.
10 Sh. Alok, counsel for the complainant in his rebuttal arguments has submitted that the documents sought to be relied upon by the accused have not been duly proved. She has not referred to any of these Page 5 of page 11 documents in her testimony and therefore, these have no evidenciary value. Moreover, the witnesses Jaswant and Sudhir were permitted to be summoned on filing of PF, which the accused never deposited despite being burdened with costs.
11 I have heard the Ld. Counsels and perused the record with their assistance. The factum of direct supply of electricity in the absence of the meter is not an issue. Complainant's witnesses have so deposed and the accused has not denied the same. Defence built by the accused is that meter was removed by officials of complainant company, a few days before the inspection, as the same was defective & needed replacement. Suggestions were given to each of the witnesses that meter had been removed shortly before the date of inspection on 18.06.2008. On being examined as DW1, accused has deposed that two employees of the complainant company namely Jaswant and Sudhir had taken away the meter on the pretext of replacing the same with a new meter. Thus, the case of complainant that the premises bearing No.C3, Greter KailashI, Near MBlock Market, New Delhi, (all the three floors), were consuming electricity without the meter is established beyond reasonable doubt.
12 The issues which are in controversy and require findings by the court are : (1) Whether the meter had been removed 45 days prior to the inspection by the officials of the complainant company, as it was defective?
(2) Whether the accused is liable and responsible for theft, if any, for the entire premises or only for first floor?
Page 6 of page 11 I shall now discuss both the issues separately.
(1) Whether the meter had been removed 45 days prior to the inspection by the officials of the complainant company, as it was defective?
13.1 It is the case of the accused that meter had been removed shortly before the search, as it was faulty & needed to be replaced. The onus was also thus upon her to establish these facts. She has deposed that employees of the company namely Jaswant & Sudhir had removed the meter. The Predecessor of this court vide order dated 20.05.2011 permitted her to summon the aforesaid officials of the complainant company, on filing of complete address & PF. The accused despite several opportunities did not deposit the PF. She was also burdened with costs vide order dated 16.07.2011 for not complying with the orders. It is argued on her behalf that she did not deposit PF, as the complete address & particulars of the witnesses were not available to her. She had been requesting officers of complainant company to provide her their addresses. Sh. B.S.Chaudhary, Ld. Defence Counsel has shown to this court certain courier receipts and applications purportedly moved by the accused to the Manager of complainant company seeking the address of Jaswant & Sudhir. This court can not look into any such courier receipts and applications as the same were not proved in evidence and also because no mention or request was made to the Ld. Predecessor of this court, when the matter was at the stage of summoning of the aforesaid two witnesses.
13.2 It is further not disputed by the accused that she had not been depositing the electricity bill for quiet some time and had challenged the same in a civil court. Again no such plaint or orders of the Civil Judge have Page 7 of page 11 been proved by the accused in her testimony. Though, there are plaints of certain suits, tagged with the court file; yet this court can not rely upon the same as these have not been duly proved by the plaintiff in her testimony. Moreover, these are photocopies.
13.3 In the aforesaid facts and circumstances, I am of the opinion that accused has failed to prove her defence that the meter was removed by the officials of complainant company with the assurance of replacing the same shortly. The natural corollary is that meter was removed by the officials of complainant company not because of it was defective but because the accused had not deposited the consumption bills.
(2) Whether the accused is liable and responsible for theft if any for the entire premises or only for first floor? 14.1 The presence of the accused at the time of inspection has been deposed by the members of raiding team. Sh. Maanas Dass (PW1) has identified the accused who was present at the time of inspection. Sh.Shyam Kumar (PW5) has also deposed that owner and her daughter was present at the time of inspection. In her statement u/sec. 313 Cr.P.C., accused has admitted her presence, however, only at the first floor. The question that remains to be answered is, whether she was responsible for the entire premises or only for the first floor which she admits to be in her possession and use. It ofcourse, is the case of the complainant that she was in use & possession of the entire premises. In the crossexamination of Sh. Maanas Dass (PW1) as recorded on 06.04.2011, he has deposed that accused took him to all the three floors of the premises in question for inspection. She had also told him that she was in possession of all the three floors. He denied Page 8 of page 11 suggestions that she had not so told him. He further deposed that the time of inspection Smt. Sarita Arora, her daughter and her servant/ guard were the only persons present. He has also specifically denied having any knowledge that ground floor and second floor were in possession of other persons than the accused. Other members of raiding team i.e. PW3 & PW5 have also not deposed that there were occupants other than the accused. 14.2 Accused has not summoned any of the alleged occupants of ground and first floors as witnesses or sought to summon them as accused u/sec. 319 Cr.P.C. She has not even revealed the particulars of the alleged tenant on the ground floor. Proverbial cat is out the bag, if the suits filed by the accused are considered. Though the same have not by the proved as required, yet the same can be read against the accused as she has relied upon them. In the said suits entire bill for the whole building has been challenged by her. None of the other so called occupants or users of ground and second floor are parties in the suits. It is also not her case that there were separate meters for each of the floors. She has also claimed to be attorney of her brother who is the owner of the ground floor. In such circumstances, I am convinced that it is the accused Sarita Arora alone who was responsible for supply of the electricity to the entire premises consisting of all the three floors. She is thus, the accused.
15.1 The documents of reliance, filed along with the application u/sec. 233 Cr.P.C. by the accused namely the Will and the Lease deed and application u/o 9 Rule VII CPC have not been referred to by the accused in her testimony. These have also not been tendered in evidence. I do not find force in the arguments of Sh. Chaudhary that documents filed along with the Page 9 of page 11 application u/sec. 233 Cr.P.C. shall be read in evidence. For ready reference section 233 Cr.P.C. is reproduced herein below: Sec:233:Entering upon defence.
(1) Where the accused is not acquitted under section 232, he shall be called upon to enter on his defence and adduce any evidence he may have in support thereof.
(2) If the accused puts in any written statement, the Judge shall file it with the record.
(3) If the accused applies for the issue of any process for compelling the attendance of any witness or the production of any document or thing, the Judge shall issue such process unless he considers, for reasons to be recorded, that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice. 15.2 A study of the scheme of Chapter18 of the Code of Criminal Procedure indicates as under: Section 225 Cr.P.C. provides trial to be conducted by the Public Prosecutor. Section 226 Cr.P.C. provides for case to be opened by the prosecution. Section 227 Cr.P.C. provides power for the court to discharge the accused, when case of the prosecution does not indicate sufficient grounds for proceeding against the accused. Section 228 Cr.P.C provides for framing of charge, in case, accused is not discharged. Section 229 Cr.P.C. provides for conviction on the plea of guilt. Section 230 & 231 Cr.P.C. provide for prosecution's evidence, in case accused pleads not guilty. Section 232 Cr.P.C. provides for incriminating evidence to be put to the accused and his acquittal in case there is not sufficient material against him. This provision is followed by section 233 Cr.P.C. which guarantees the right to the accused to enter his defence and to lead evidence in his support.
Page 10 of page 11 15.3 Thus, Section 233 Cr.P.C. enables the accused to produce witnesses and lead evidence. It only provides an enabling provision in the procedure of trial, whereby the accused can prove his defence. This does not by any stretch of imagination confer upon the accused power to place documents on record, without their formal proof. While, interpreting this provision. The Hon'ble Supreme Court in State of M.P. VS. Badri Yadav reported as 2006 Crl.L.J. 2128(SC) held as under: "Under section 233 Cr.P.C., the accused can enter upon defence and he can apply for the issue of any process for compelling the attendance of any witness in his defence."
Similar view was taken by the Hon'ble High Court of Punjab & Haryana in Nandani Bakshi Vs. C.B.I. reported as 2008 Crl.L.J.4506. 16 I am, thus, of the considered opinion that documents filed along with applications u/sec. 233 Cr.P.C. can not be read in evidence against the complainant. In the aforesaid facts & circumstances, as discussed in paras 11 to 15 above, I am of the considered opinion that complainant has proved its case beyond reasonable doubts. I, therefore, hold that accused was responsible for theft of electricity being committed at the premises in question. Accused Sarita Arora is thus held guilty for the offence punishable U/sec. 135 of the Act. She is also liable to recompense the complainant for illegally consuming the electricity for domestic purpose.
Announced in the open ( NAROTTAM KAUSHAL)
court on 03.02.2012 ADDL.SESSIONS JUDGE
SPL. ELECTRICITY COURT
SAKET COURTS NEW DELHI
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