Delhi District Court
State vs Joginder Fir No. 369/2018 Page No. 1 Of 12 on 29 June, 2020
1
IN THE COURT OF SH. SANJEEV KUMAR SINGH, ADDL. SESSIONS
JUDGE, THE SPECIAL COURT UNDER THE ELECTRICITY ACT 2003,
SAKET COURTS, NEW DELHI
CIS No. : 32/2019
SC NO. : 18/19
FIR No. : 369/2018
PS. : Mehrauli
Under Section : 135 of Electricity Act, 2003
STATE
Versus
JOGINDER
S/O LATE SH. BHOOP SINGH
R/O H. NO.23, GROUND FLOOR, SHARNAGAR,
VATICA TEMPLE, SAIDULLAJAB, NEW DELHI110030
...ACCUSED
Case instituted on : 09.01.2019
Judgment reserved on : 23.06.2020
Judgment pronounced on : 29.06.2020
JUDGMENT
1. The case of the prosecution in brief is that a complaint was received at police station Mehrauli on the basis of which above said FIR no.369/2018 was registered under Section 135 Electricity Act, 2003 against the accused.
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2. As per contents of the said complaint, the case of the complainant in brief is that on19.06.2018 at about 7.15 a.m., a joint inspection team consisted of officials of complainant company namely Sh.Jai Gopal GautamManager, Mr. Chander Kant DH, Mr. Bachhu SinghLineman conducted inspection at the premises i.e. House no. 23, Ground Floor, Near Sharnagar Vatica Temple, Saidullajab, New Delhi110030 (hereinafter referred as premises in question).
3. At the time of inspection one single phase electronic meter bearing no.
21536221 with C/R 15539 Kwh, MDI 3.240 KW was found installed at site however, the user were found indulged in direct theft of electricity by directly tapping from BSES Bus Bar with the help of illegal cable and found using total connected load of 9.535 KW for domestic use. Illegal material was seized by the inspection team from the spot as material evidence. Inspection report, load report and seizure memo were prepared at site and necessary videography was also conducted during inspection.
4. It is further mentioned in the said complaint that complainant company has assessed the civil liability of Rs.2,15,262/ against accused and theft bill as per DERC Regulations. Accordingly, a supplementary bill with due dated 05.07.2018 was duly sent to the accused.
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5. On the basis of the aforesaid complaint, present FIR bearing no.369/2018 was registered and after investigation challan was filed.
6. Cognizance of the offence punishable under Section 135 of the Electricity Act was taken by Ld. Predecessor of this Court on 09.01.2019 and the accused was summoned accordingly. On 30.05.2019 accused appeared and was enlarged on bail.
7. Notice of accusation under Section 251 Cr.P.C. was put to the accused on 30.05.2019 to which he pleaded not guilty and claimed trial.
8. In order to prove the case against the accused, prosecution has got examined five witnesses, which have discussed below.
9. Statement of accused was recorded under Section 313 Cr.P.C. separately on 15.02.2020. Accused pleaded his innocence and denied the evidence on the ground that he had not committed any offence as alleged by the complainant company. It was further submitted that he had settled the matter with the complainant company and had obtained NOC towards civil liability. Accused did not opt to lead defence evidence.
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10. I have heard arguments on behalf of both parties through video conferencing via Cisco Webex and also gone through the record.
11. PW1 Sh.Chander KantDiploma Holder, BRPL, who deposed that on 19.06.2018 at about 7.007.15 a.m. he alongwith Sh.Jai Gopal Gautam Assistant Manager, Sh.BachhuSinghLineman and Sh. Sanju Videographer from M/s Arora Photo Studio visited and inspected the premises i.e. House No.23, First Floor, Saidullajab, New Delhi. He further deposed that on reaching the spot, they found that meter installed at the premises in question was not in operation and the supply of electricity was through directly tapping from the BSES Bus Bar with the help of illegal wires. He further deposed that at the direction of the team leader, he assessed the total connected load of the premises in question which was found to be 9.35 KW approximately for domestic use. He proved the documents i.e. inspection report, load report and seizure memo as Ex.PW1/A(colly), Ex.PW1/B and Ex.PW1/C. In his crossexamination, PW1 has denied the suggestion that excess and exorbitant load has mentioned in the load report. He further denied the suggestion that no inspection was carried out at the premises in question. He further denied the suggestion that the accused was not indulged in direct theft of electricity.
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12. PW2 ASI Shyam Lal/Duty Officer, who registered the present FIR and proved the same as Ex.PW2/A and endorsement by him on the original complaint as Ex.PW2/B and the certificate under Section 65B of Evidence Act as Ex.PW2/C.
13. PW3 Sh.Jai Gopal GautamManager, BRPL, who deposed that on 19.06.2018 at about 7.15 a.m., he alongwith Sh.Chander Kant SinghEngineer, Sh.Bachhu SinghLineman and Sh.SanjuVideographer visited and inspected the premises i.e. house no.23, Ground Floor, Saidullajab, New Delhi. He further deposed that on reaching the premises, they found that there were three electricity meters installed at site however, all the meters were found bypassed by the accused and indulged in direct theft of electricity by directly tapping from BSES Bus Bar. He further deposed that the connected load of the premises in question was found to be 9.0 KW approximately for domestic purpose. He further deposed that one electricity meter was removed and seized from site. He proved the documents i.e. inspection report, load report and seizure memo. In his crossexamination, PW3 replied that there was no fake meter at the premises in question. He further replied that there were no witness from public and volunteered that during inspection he asked some public persons for witness but they refused to do so. He denied the suggestion that there was STATE Vs.JOGINDER FIR No. 369/2018 Page no. 5 of 12 6 no theft of electricity at the premises in question and hence no public witness was there. He further denied the suggestion that complaint against the accused was on manipulated facts & concocted story. He further denied the suggestion that the videography was conducted with malafide intention.
14. PW4 IO/HC Desh Raj has deposed that on 29.06.2018 he was posted in the PS. Mehrauli. He further deposed that he visited the premises in question alongwith the complainant and prepared the site plan at his instance and proved the same as Ex.PW4/A. He further proved the statement of witnesses recorded under Section 161 Cr.P.C. vide Ex.4/B (colly). He further proved the notice under Section 41A Cr.P.C. as Ex.PW4/D and identified the accused, who was present in the Court, at the time of his deposition. In his cross examination, PW4 has admitted that he has no personal knowledge regarding the inspection. He admitted that no videography was conducted when the site plan was prepared. He admitted that investigation in the present case as well as in other two FIR against the accused was conducted at the same time. He denied the suggestion that he had not conducted fair & proper investigation.
15. PW5 Sh.Bachchu SinghLineman has also deposed on the similar lines as deposed by PW1 and PW3 in their examination in chief. He identified the STATE Vs.JOGINDER FIR No. 369/2018 Page no. 6 of 12 7 seized material i.e. meter bearing no. 21536221 as Ex.P2. He also proved the documents i.e. inspection report, load report and seizure memo. In his cross examination, PW5 has admitted that preparation of documents/reports were not covered in the videography. PW5 has further replied that his duty was limited to remove and seize the case property at site at the direction of team leader. He admitted that Ex.P2 was installed at site during inspection. He denied the suggestion that despite installation of meter Ex.P2 the present case for direct theft of electricity has been booked against accused.
16. On 28.01.2020 the statement of accused Joginder was recorded under Section 294 Cr.P.C. whereby admitting the videography containing in the CD as Ex.PWX1 and the certificate under Section 65B of Evidence Act, Ex.X2.
17. It was submitted by the ld. Counsel for the complainant company that it has been held in catena of judgments passed by Hon'ble Apex Court as well as Hon'ble High Court of Delhi that in order to bring home the guilt of accused under the cases of direct theft of electricity, following ingredients need to be proved:
(i) the identity of accused;
(ii) the identity of premises in question;
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(iii) the connection of the accused with the premises in question;
(iv) that the accused was indulged in direct theft of electricity by illegal means and was not using the electricity by paying due charges.
18. It was submitted by ld. Counsel for complainant company that in order to bring home the guilt of the accused, prosecution has examined five witnesses and from their deposition, it is revealed out that inspection was carried out on 19.06.2018 at around 7.15 a.m. by the officials of the complainant company at the premises in question. The supply for the premises in question was running on direct theft by directly tapping from BSES Bus Bar with the help of illegal wires.
19. It was further submitted by ld. Counsel for complainant company that PW1 (Diploma Holder) has duly proved the documents prepared at site as well as connected load of the premises in question. PW2 (duty officer) has proved the FIR. PW3 (team leader) has duly proved inspection conducted at site. PW4 (IO of the case) who has conducted investigation and also proved the site plan and identified the accused, who was present in the Court, at the time of his deposition. PW5 (Lineman) who has proved the meter seized at site as Ex.P2. Lastly, it was submitted that accused has himself admitted the contents of videography containing in the CD as Ex.PWX1 and the STATE Vs.JOGINDER FIR No. 369/2018 Page no. 8 of 12 9 certificate under Section 65B of Evidence Act, Ex.X2 vide his statement recorded under Section 294 Cr.P.C, thus, prosecution has proved all the aforesaid ingredients.
20. In the said circumstances, the onus has been shifted upon the accused to prove his innocence or the defence as the presumption has arisen against him as mentioned in the third proviso to Section 135 of the Electricity Act.
21. The accused is not supposed to prove his defence 'beyond reasonable doubt' under the law and if any economic law shifts the burden on the accused to rebut any presumption, the extent of onus to be discharged by him has been laid down by the Hon'ble Supreme Court in case titled Hiten P. Dalal Vs Bratindranath Banerjee cited as 2001 (6) SCC 16 in para 20 as follows: ".....Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the court in support of the defence that the Court must either believe the defence to exist or consider its existence to be reasonably probable, the standard or reasonability being that of the 'prudent man'."
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22. In view of the said law laid down by the Hon'ble Supreme Court, let me consider if the accused has taken any defence. Accused has submitted in notice under Section 251 Cr.P.C. put against him and in his statement recorded under Section 313 Cr.P.C. that he had already cleared the civil liability and simply denied the evidence on the ground that he was not committing any direct theft of electricity and that false and fabricated case has been made out against him by the complainant company.
23. The said defences taken on behalf of accused are merely bald submissions as the accused has failed to lead any defence evidence or to produce any document to the effect that he was using electricity legally and lawfully by paying due charges to the complainant company. Moreover, accused has admitted the videography conducted at the time of inspection at the premises in question.
24. Thus, PW1, PW3 & PW5 having no axe to grind against the accused and they had no motive to falsely implicate the accused. Their respective deposition are further corroborated by the documents placed on record and the videography which further corroborated the inspection conducted at site.
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25. Generally, in the cases pertaining to direct theft of electricity, the best remedy available to the accused is to produce the electricity bills for the relevant period, however, no electricity bill pertaining to the premises inspected has ever been produced by the accused in the present case despite opportunity given. In this regard, reliance can be placed upon judgment passed by Hon'ble High Court of Delhi in Mukesh Rastogi Vs. North Delhi Power Limited, in Criminal Appeal No. 531/2007, the relevant extract of said judgment is reproduced as under: ".........6. The contention of the appellant is that electricity supply was through meter. Had the electricity been going to the appellant's premises through meter, the easiest way to prove it was by producing the electricity bills paid by the appellant to the complainant company. The very fact that the appellant did not prove a single bill showing payment of electricity charges fortifies the plea of the complainant company that electricity was being used by the appellant directly from LT Main by committing theft. Paid electricity bills would have been the best evidence to show that the appellant was using electricity through meter. Under Section 106 of the Evidence Act, the onus was on the appellant to produce and prove such bills paid for the use of electricity. However, this was not even the case of the appellant either before trial court or in appeal that he had been using electricity through meter and had been paying bills of STATE Vs.JOGINDER FIR No. 369/2018 Page no. 11 of 12 12 electricity as per meter. The appellant had only taken the stand that inspection was not valid inspection and the photographs were not proved properly".
26. From the above discussion, it is clear that accused miserably failed to show any probable defence in his favour coupled with the fact that he has already cleared the civil liability towards the theft bill and also obtained NOC from the complainant company. Hence, I am of the considered opinion that the prosecution has been successful in proving the case against accused beyond reasonable doubt and accordingly accused Joginder is held guilty under Section 135 of the Electricity Act, 2003, and is convicted. Let the file to come up for quantum of sentence and determination of civil liability today itself.
Announced in the open (SANJEEV KUMAR SINGH)
court on this 29.06.2020 ADDL. SESSIONS JUDGE
SPL. ELECTRICITY COURT
SAKET COURTS, NEW DELHI
SANJEEV Digitally signed by
SANJEEV KUMAR SINGH
KUMAR Date: 2020.06.29
SINGH 15:44:16 +0530
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