Delhi District Court
Bses vs . Manoj & Anr., Cc No. 490/08 Page No. 1 Of ... on 22 August, 2014
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. : 490/08
Police Station : Sangam Vihar, New Delhi
U/s : 135 of Electricity Act, 2003
Unique ID No. : 02403 RO944722008
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
1. Shri Manoj (User)
S/o Shri Suresh Chand Gupta
2. Shri Baleshwar (User)
S/o Shri Bahura
Both at: I2/15/934,
Sangam Vihar, New Delhi
...Accused
Appearances : AR with Shri S.K. Alok, counsel for the complainant.
Accused Manoj is present on bail along with Shri S.S.
Wani, Advocate
Accused Baleshwar is present on bail along with Shri
Akshay Kumar Sharma, Advocate from DLSA
Complaint instituted on : 22.08.2008
Judgment reserved on : 11.08.2014
Judgment pronounced on : 22.08.2014
BSES Vs. Manoj & Anr., CC No. 490/08 Page no. 1 of 20
JUDGMENT
1. The case of the complainant in brief is that on 23.05.2008, the officers of the complainant company namely, Shri G.S. Kohli - Assistant Manager (Enforcement), Shri Sunil - Electrician, Shri Y.S. Verma - AG I and Shri Suraj - Electrician conducted inspection at premises being used and occupied by accused Manoj and Baleswar i.e. U2//15/934, Sangam Vihar, New Delhi and that accused were using electricity illegally at the said premises by directly tapping from the service line of the complainant for domestic and commercial purposes and that no electricity meter was found installed at the said premises. It is further mentioned in the said complaint that accused were found using total connected load of 5.895 KW for domestic as well as commercial purposes. It is further mentioned in the complaint that inspection report along with sketch of manner of theft, meter details and load report were prepared at the site and necessary photography 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.4,34,258/ with due date as 16.06.2008 and was served upon the accused but they failed to pay the said theft bill.
BSES Vs. Manoj & Anr., CC No. 490/08 Page no. 2 of 20
3. The case was fixed for presummoning evidence and my Ld. Predecessor vide order dated 21.04.2009 issued summons to the both accused and accused Manoj Gupta and Baleshwar had appeared.
4. My Ld. Predecessor vide his order dated 18.11.2011 framed notice u/s. 251 Cr.P.C. for the offence punishable u/s. 135 of the Electricity Act, against accused Baleshwar to which he pleaded not guilty and claimed trial on the ground that he was at his native village for about 56 months and that during the period of his absence, accused Manoj Gupta used his premises and that said Manoj used the illegal tap for committing direct theft of electricity without his knowledge and permission and that he was not committing any theft and accused answered that he is not liable to pay any loss or damage to the complainant company.
5. My Ld. Predecessor vide his order dated 19.03.2012 framed notice u/s. 251 Cr.P.C. for the offence punishable u/s. 135 of the Electricity Act, against accused Manoj Gupta to which he pleaded not guilty and claimed trial on the ground that he was not associated with the premises in question and that he never used the premises or the alleged illegal tap and that he has been wrongly implicated. Accused BSES Vs. Manoj & Anr., CC No. 490/08 Page no. 3 of 20 further answered 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.
6. In order to prove the case of the complainant, four witnesses were produced, which have been discussed below.
7. The statements of the accused Manoj Gupta and Baleshwar were recorded u/s. 313 Cr.P.C. Accused Manoj Gupta pleaded his innocence and denied the evidence as false and answered that he had no knowledge of the present inspection and that he was neither the resident of the premises in question nor he ever used the electricity there and that he had no connection with the premises in question. Accused further answered that he had no knowledge of the documents prepared at the site nor the said documents were ever supplied to him and the same were forged and fabricated documents. Accused further answered that he never used the premises in question for any purpose and that he was not connected with the said premises in any manner and that he never used the said premises for running any submersible pump as alleged against him. Accused further answered that he was wrongly arrested by the local police as BSES Vs. Manoj & Anr., CC No. 490/08 Page no. 4 of 20 proclaimed offender and that he was falsely named as accused in the present case by accused Baleshwar, who is neighbour of one Shri Daleep with whom he had animosity. Accused further answered that on his personal enquiry, he came to know that the premises I2/15/934, Sangam Vihar, New Delhi belonged to accused Baleshwar. Accused opted to lead defence evidence and produced one defence witness, which has been discussed below.
8. Accused Manoj in his additional statement u/s. 313 Cr.P.C.
answered that he has been falsely implicated in the present case and that present case is without any basis and foundation and that the present case is a case of mistaken identity against him as he has nothing to do with the premises in question i.e. I2/15/934 and that he was neither the resident of the premises in question nor he ever used the said premises for any purpose nor he ever resided at the said premises in any capacity. Accused further answered that he was the resident of house no. 1394A, I block, Gali no. 15, Sangam Vihar, New Delhi and in order to prove the same he brought on record photocopy of his ration card Ex. D1 photocopy of Aadhar Card Ex. D2, photocopy of LIC document dated 28.11.2002 Ex. D3, photocopy of telephone dated 11.09.2008 Ex. D4, photocopy of acknowledgement slip of registrationcumdemand note dated 27.07.2004 issued by BSES Vs. Manoj & Anr., CC No. 490/08 Page no. 5 of 20 MTNL Ex. D5, photocopy of election Icard Ex. D6, photocopy of PAN card Ex. D7 ad photocopy of vehicle Registration Certificate as Ex. D8.
9. Accused Baleshwar pleaded his innocence and denied the evidence as false and answered that he had no knowledge of the present inspection and that he was not residing at the premises in question nor he was user of the electricity at the said premises. Accused further answered that he had no knowledge of the documents prepared at the site nor the said documents were ever supplied to him and the same were forged and fabricated documents. Accused further answered that he did not use electricity without any meter nor he was the user of the electricity during the disputed period in January, 2008 and that he had to go to his native place along with his family and had returned in the month of July, 2008. Accused further answered that he was wrongly and falsely named as accused in the present case without proper inquiry. However, accused opted to lead defence evidence and produced one defence witness, which has been discussed below.
10. In his additional statement u/s. 313 Cr.P.C. accused Baleshwar answered that submersible pump was affixed by accused Manoj, who BSES Vs. Manoj & Anr., CC No. 490/08 Page no. 6 of 20 was present in the court on the day of recording of said statement and that he used to extract water with the said submersible pump and sell the same to residents of the gali.
11. I have heard the counsel for the complainant, counsel for the accused Manoj Gupta, Shri S.S. Wani, Advocate and counsel for accused Baleshwar, Shri Akshay Kumar Sharma from DLSA. I have also perused the record including the CD of videography/ photography displayed on the computer screen of the court.
12. PW1 Shri G.S. Kohli was the Senior Manager of the complainant company, who deposed that on 23.05.2008 at about 12:00 p.m., he along with Sh. Suraj, Sh. Sunil and Sh. Y.S. Verma visited & inspected the premises i.e. H. No.934, Block no.I2/15, Sangam Vihar, New Delhi and that on reaching the said premises, they found that there was no meter installed at the site and that the consumer was using the direct supply to connect illegal wire in service line. PW1 further deposed that there were two persons present at the time of the inspection, out of whom one was gent and the other was lady. PW1 did not remember the name of the aforesaid persons present at site. PW1 further deposed that the lady who was present at the site was the occupant/ tenant of the said premises and the entire BSES Vs. Manoj & Anr., CC No. 490/08 Page no. 7 of 20 inspection was carried out in her presence and that the said lady also disclosed to them that the water supply of the borewell was running by Manoj and Baleshwar. PW1 further deposed that the water bore well installed at the site was being used for selling of water and that they assessed the total connected load of the premises which was found to be 5.5 KW for nondomestic purpose. PW1 proved the inspection report as Ex.CW2/1 and load report as Ex.CW2/2. PW1 further deposed that they did not seize illegal wire due to mob gathering at site. PW1 further deposed that they offered the said documents to the persons present at the site but they refused to receive & sign the same. PW1 also proved the CD of videography as Ex.CW2/3 and identified the videography and photographs contained therein.
13. In his cross examination on behalf of accused Manoj Gupta, PW1 answered that the lady, who was present at the premises, informed him that the borewell in the premises was used by one Manoj for selling water and that the said lady was not made witness in the present case and that she was asked to join as a witness, but she refused the same being illiterate. PW1 volunteered that they did confirm from other neighbours also that accused Manoj was using the borewell for selling the water. PW1 did not know the names of BSES Vs. Manoj & Anr., CC No. 490/08 Page no. 8 of 20 neighbours, who confirmed the above said facts. PW1 also did not know as to who was the owner of the inspected premises. PW1 replied that the notices sent by Enforcement Department to the accused persons at the address of premises are not on judicial file. PW1 replied that the same might be available at the Enforcement office. PW1 further answered that the accused persons were not present at the site and they did not request the department to provide them the documents. PW1 could not say as to whether anybody from the Enforcement Department had actually served the said documents upon the accused persons. PW1 could not admit or deny as to whether accused Manoj resided at BlockI, Gali no.15, H.No.1394A, Sangam Vihar, New Delhi and that the accused Manoj never resided or occupied the premises bearing no.I2/15/934, Sangam Vihar, New Delhi. PW1 further replied that the department had no mechanism to confirm the details of user, whenever, any complaint is being received for direct theft. PW1 further answered that they did not seize anything from the premises due to security reasons as they did not want to stay at the premises for longer time. PW1 answered that he was carrying out such inspection as he is technically proficient to carry out such inspection and that the inspection team constituted of Sh. Suraj, who was technician, Sh. Sunil, who was holding clerical post at the relevant time and Sh.Y.S. BSES Vs. Manoj & Anr., CC No. 490/08 Page no. 9 of 20 Verma, who was holding the post of clerk. PW1 could not say as to whether the premises in question was owned by accused Baleshwar. PW1 further answered that he came to the conclusion that submersible was connected to the load as there were some GI pipes coming out from the ground, which were hidden by bricks, as seen in photograph bearing no.DT 013.jpg contained in CD Ex.CW2/3 and that there was also a starter at the site, which was covered in videography contained in CD Ex.CW2/3 and that the wires from the starter were going underground near the GI pipes and that the same indicated that the pipes were of a submersible pump connected to the load.
14. PW2 Shri Y.S. Verma deposed on the same lines on which PW1 has deposed and as mentioned in the complaint.
15. In his cross examination on behalf of accused Manoj Gupta, PW2 replied that he was authorised by the DGM (Enforcement) to accompany and conduct the raid and that he had not placed any document to show that I was authorised by the DGM to accompany and conduct the raid. PW2 further replied that they tried to join the independent witness but nobody agreed for the same and that they had not mentioned in any of document that they tried to join the BSES Vs. Manoj & Anr., CC No. 490/08 Page no. 10 of 20 public witnesses and that they refused the same. PW2 further replied that he had signed only on load report and not on inspection report and other documents. PW2 could not tell any reason as to why he did not sign the inspection report and other documents. PW2 further could not tell as to who was the owner of the premises in question on the date of inspection as deposed by him in his examination in chief. PW2 could not say as to on the date of inspection, the premises in question was owned by one Baleshwar and that whether Manoj was having any concerned with the said premises but both the accused were operating the water pump in the said premises on the date of inspection. PW2 replied that for the said premises, no electricity meter was ever allotted. PW2 again said that on the date of inspection there was no meter in the premises in question. PW2 replied that in the routine inspection they came to know that accused Manoj and Baleshwar were using the submersible pump at the said premises and that no public person had informed them about the use of submersible pump by the accused persons and that they came to know about the same while carrying out the routine inspection. PW2 answered that the documents i.e. inspection report and load report were sent to the accused persons through speed post. After inspecting the judicial file, PW2 failed to show any receipt of speed post or any other proof. PW2 answered that they could not seize the BSES Vs. Manoj & Anr., CC No. 490/08 Page no. 11 of 20 illegal wire as there was mob gathering and the police official who was accompanying them did not assist in this regard. PW2 replied that they had requested the police for assistance before carrying out the inspection. PW2 could not say as to whether accused Manoj was the resident of house no. 1394A, Block I, Gali no. 15, Sangam Vihar. PW2 admitted it as correct that accused Manoj was not present at the time of inspection and that accused Manoj, as he was not present, could not have refused to receive and sign the documents. PW2 further replied that the videography and photography was not done by any professional and that no memory card containing the videography or photography was submitted in the court. PW2 answered that no notice was issued to the accused persons for personal hearing and that no show cause notice was issued to the accused Manoj before filing the complaint.
16. In his cross examination on behalf of accused Baleshwar, PW2 admitted it as correct that accused Baleshwar was not present at the spot at the time of inspection and that they tried to ascertain from the neighbourhood as to who was the actual user of the electricity, however, PW2 could not give the names of neighbours from whom they made the said inquiries. PW2 could not say as to whether accused Baleshwar was not residing in the premises in question, BSES Vs. Manoj & Anr., CC No. 490/08 Page no. 12 of 20 approximately three months prior to the inspection or that for the said period he was at his native village. PW2 could not say as to whether premises in question was rented out to accused Manoj.
17. PW3 Shri A.S. Menon, Dy. Finance Officer in the complainant company deposed that he prepared the theft bill as per DERC regulations and he also proved the said bill as Ex. CW2/4.
18. In his cross examination on behalf of the accused Manoj, PW3 admitted it as correct that no inquiry was conducted with regard to the actual period of theft, if any, for raising the bill. PW3 replied that copy of theft bill was sent to the accused persons through speed post and that the same was sent to accused Manoj as well. PW3 volunteered that there was inbuilt check system in the computer, wherein if the theft bill was not sent by speed post, the same was indicated in the system. PW3 did not know as to whether the receipt of speed post was placed on judicial record. PW3 answered that the speed post was sent to accused Manoj at the address as mentioned in the theft bill Ex. CW2/4 at point B. PW3 did not know as to whether the same was not the residential address of the accused Manoj. PW3 could not admit or deny that the address at point B in Ex. CW2/4 was the address of accused Baleshwar and not of accused Manoj. BSES Vs. Manoj & Anr., CC No. 490/08 Page no. 13 of 20
19. PW4 Shri Ashutosh Kumar is the A.R. of the complainant who proved his General Power of Attorney on behalf of the complainant company as Ex. PW4/1 and he also proved the complaint Ex. CW1/1 and he deposed that he has no personal knowledge of the facts of the case and has deposed as per records. In his cross examination on behalf of both the the accused, he replied that he did not visit the premises in question and that he deposed on the basis of documents on record.
20. D1W1 Shri Manoj Kumar was summoned on behalf of accused Manoj Gupta, who deposed he knew accused Manoj Gupta from last 13 years as he had a shop in their locality i.e. IBlock, Sangam Vihar. D1W1 further deposed that at the relevant time, accused Manoj Gupta was carrying out business of supplying building material at various construction sites. D1W1 brought the photocopy of his driving license and PAN card and proved the same as Ex. D1W1/A and Ex. D1W1/B respectively. D1W1 further deposed that accused Manoj Gupta was resident of House No. 1394, Gali No. 15, I Block, Sangam Vihar, New Delhi62 and that he was residing at the said address from last 1516 years and that the accused was living at the said address only and had no connection with premises bearing no. I2/15/934, Sangam Vihar, New Delhi.
BSES Vs. Manoj & Anr., CC No. 490/08 Page no. 14 of 20
21. In his cross examination on behalf of complainant company, D1W1 replied that he had no knowledge as to whether the accused Manoj was involved in other business except the said shop. D1W1 again said that as per his knowledge the accused was only carrying out the business of parchoon and gas cylinder parts at the said shop.
22. In his cross examination on behalf of the accused Baleshwar, D1W1 replied that he did not know that exact address of shop of accused Manoj, however, the same was situated in gali no. 15, IBlock, Sangam Vihar, New Delhi, which was a rented shop with him. D1W1 further replied that about 45 years ago, another shop was in the occupation of accused Manoj, which was situated near Shani Bazar, IBlock, Sangam Vihar New Delhi. D1W1 coul dnot say as to whether the said shop near Shani Bazar was owned by accused Manoj or was on rent. D1W1 did not know as to where address i.e. I2/15/934, Sangam Vihar, New Delhi62 was situated.
23. D2W1 Shri Laxman Singh was summoned on behalf of accused Baleshwar, who brought voterI card to support his address and copy of the same was Ex.D2W1/A. D2W1 further deposed that he knew accused Manoj for many years and water motor belonged to him was BSES Vs. Manoj & Anr., CC No. 490/08 Page no. 15 of 20 in front of his house and that as accused Manoj was not having any space, he had taken a room on rent from accused Baleshwar since January, 2008. D2W1 further deposed that the said water motor was being operated by elderly person who was operating the same on behalf of accused Manoj and accused Manoj used to supervise the said water motor, whether operational or not. D2W1 further deposed that he had also taken a water connection from the said motor for Rs. 300/ p.m. and that accused Manoj was charging the said amount for other connections given to other persons for water from the said water motor. D2W1 further deposed that the said elderly person was residing at the said rented room taken by the accused to operate the said water motor and that accused Baleshwar returned back to Delhi in the month of July or August 2008 and that accused Baleshwar had received a notice of electricity which was shown by accused Baleshwar to accused Manoj also and accused Manoj assured accused Baleshwar not to worry about the same that he would sort out the matter.
24. In his cross examination on behalf of complainant company, D2W1replied that he had no document to show that accused Baleshwar was residing in front of his house and that he was visiting the premises of accused Baleshwar 67 times in a week. D2W1 replied BSES Vs. Manoj & Anr., CC No. 490/08 Page no. 16 of 20 that the address of accused Baleshwar was I2, Gali No.15, H.No.934, Sangam Vihar, New Delhi, which might be in 50 sq. yards and initially there was ground floor only and now he got constructed some portion on first floor also and that on the ground floor, there were two rooms. D2W1 replied that in the year 2008, there were six members in the family of accused Baleshwar. D2W1 further replied that he knew accused Manoj as he was previously residing at Iblock, Gali No.20, H.No.1693, Sangam Vihar, New Delhi and that accused Manoj was regular visitor to his elder brother, who was residing at I2, Gali No.15, H.No.909, Sangam Vihar, New Delhi, as they both brothers were residing together. D2W1 admitted it as correct that in one rented room, given by the accused Baleshwar to accused Manoj, said elderly person was kept for operating the said water motor and after coming from his native village, the family of accused Baleshwar was residing in the rear room out of the said two rooms in the said premises and at the relevant time in the front room, no one was residing. D2W1 had not seen electricity meter in the said premises of accused Baleshwar. D2W1 admitted it as correct that there was no electricity meter at the relevant time.
25. In his cross examination on behalf of accused Manoj, D2W1 admitted it as correct that he was having cordial relations with the BSES Vs. Manoj & Anr., CC No. 490/08 Page no. 17 of 20 family of accused Baleshwar. D2W1 did not know the address of accused Manoj, but he can lead to his house. D2W1 replied that the distance between the house of the accused Baleshwar and that of accused Manoj might be less than half mile and that he had never entered the house of accused Manoj and that was why he could not say about its area. D2W1 could not tell the name of native village of accused Baleshwar but he was from Orissa. D2W1 did not know the name of said elderly person nor about his address. D2W1 replied that he had no receipt of said Rs.300/ per month given to accused Manoj. D2W1 volunteered that no such receipt was given to any person. D2W1 further replied that there was no rent agreement executed between both the said accused and that no such notice of electricity was received by accused Manoj and that same was received by accused Baleshwar only. He volunteered that as accused Manoj was not present, the said notice was received by him. D2W1 did not know as to whether accused Manoj had shown any notice of electricity to accused Baleshwar. D2W1 did not know as to whether there was an altercation between accused Manoj and his elder brother Dalip in 2005. D2W1 further did not know as to whether any Panchayat was organized to resolve the rift between the said accused Manoj and his elder brother. D2W1 further deposed that they were four brothers namely Dalip Singh, Vijay Singh & Sukhdev Singh.
BSES Vs. Manoj & Anr., CC No. 490/08 Page no. 18 of 20
26. From the said evidence on the record, it is quite clear that only statement of accused Baleshwar u/s. 313 Cr.P.C. and deposition of D2W1 Laxman Singh, the evidence has come on the record that accused Baleshwar was residing in the premises in question and he rented out one room to accused Manoj for using the same for operating the water motor through which accused Manoj was allegedly selling the water in the neighbourhood.
27. If we go by the cross examination of PW1 and PW2 as reproduced above, it is quite evidence that both the accused were admittedly not present at the spot nor the said witnesses could tell as to who was the owner of the premises on the date of inspection. No artificial means i.e. illegal wire was seized , though it is claimed by the witnesses that same could not be seized because of mob gathering. But surprisingly, the said version of the said two witnesses is difficult to be swallowed in view of the categorical admission of PW2 that police official was accompanying them but he refused to assist in the seizure of the artificial means. There is no positive evidence on the record to link the accused with the premises in question or with the commercial activity of allegedly selling the water from the submersible pump.
BSES Vs. Manoj & Anr., CC No. 490/08 Page no. 19 of 20
28. Now the question arises under the law as to whether the accused can be held guilty of an offence which the accused themselves have tried to establish on the record as has been done in the present case.
29. Hon'ble Apex Court in catena of judgments have repeatedly held that it is for the prosecution or for the complainant to establish the case against the accused beyond reasonable doubt and if the defence of the accused is weak or faulty, it cannot be utilized by the prosecution to fill up the lacuna in its own case for the simple reason that prosecution has to stand on its own legs.
30. Hence, the benefit of doubt is extended to the accused and they are acquitted of the offence charged against them u/s. 135 of the Electricity Act, 2003. Their PB and SB are cancelled and discharged. The file be consigned to the record room.
Announced in the open ( RAKESH TEWARI )
court on 22.08.2014 ADDL. SESSIONS JUDGE
SPL. ELECTRICITY COURT
SAKET COURTS, NEW DELHI
BSES Vs. Manoj & Anr., CC No. 490/08 Page no. 20 of 20