Delhi District Court
Brpl vs . Md. Ismial Page No. 1 Of 10 on 11 May, 2023
IN THE COURT OF SH. VINOD KUMAR MEENA,
ADDITIONAL SESSIONS JUDGE, SPECIAL
ELECTRICITY COURT, SOUTH WEST DISTRICT,
DWARKA COURTS, DELHI
Ct. Case No. 902/17
PS Bindapur
CNR No. DLSW01-014039-2017
BSES Rajdhani Power Limited
Having its registered office at:
BSES Bhawan, Nehru Place,
New Delhi-110019
Also at:
Corporate, Legal and Enforcement Cell,
Near Andrews Ganj Market, Andrews Ganj,
New Delhi - 110049
through Mr. Ashutosh Kumar
(Authorized Representative)
.....Complainant
Versus
Md. Ismial (User & R.C.)
R/o Shop at Plot no. -36, Block-A-2,
First Floor, Chanakya Place-I,
Uttam Nagar, Near- Church,
New Delhi- 110059
Nature at work : Dry Cleaning Work
......Accused
Date of institution of the case : 02.11.2017
Date of commission of offence : 11.07.2016
Offence complained of : U/s 135 Electricity Act
Plea of the accused : Pleaded not guilty
Final order : Acquittal
Date on which judgment reserved : 09.05.2023
Date of judgment : 11.05.2023
- :: JUDGMENT :: -
1.Vide this judgment, the court shall decide the present complaint case which is filed by complainant BSES Rajdhani Ct. Case No. 902 of 2017 BRPL Vs. Md. Ismial Page No. 1 of 10 Power Ltd. U/s 135 of Electricity Act against accused Md. Ismial.
2. Before proceeding further on deciding the present matter on merits, the brief facts of the case are mentioned herein as under:
Brief facts:
I. On 11.07.2016, at about 07:00 AM(hereinafter referred as impugned date and time), a BSES team comprising of Sh. Saurabh Sharma(Assistant Manager, BSES), Sh. Saurabh(Engineer, BSES), Sh. Durgesh (Technician, BSES), Deepu(Videographer), Sh. Sumit Arora(DGM) and police officials visited and inspected premises i.e. Shop at Plot no. 36, Block-A-2, First Floor, Chanakya Place-I, Uttam Nagar, Near Church, New Delhi-
110059(herein after referred as impugned premises) for an inspection II There was a single phase electronic meter bearing no. 21120705 installed in the said premises. Notwithstanding this, it was noticed that user was indulging in direct theft of electricity by illegal tapping from BSES Bus Bar( P & N) of the BSES pole which was further connected to the load of the said premises.
III Total connected load of the accused's premises was 4.503 KW for non-domestic purpose i.e. for running Dry Cleaning Work.
Ct. Case No. 902 of 2017 BRPL Vs. Md. Ismial Page No. 2 of 10IV Members of BSES raiding/inspection team prepared the Inspection Report Ex. PW2/A( also Ex. CW-2/1), Load Report Ex. PW2/B( also Ex. CW-2/2) and Seizure memo Ex. PW 2/C (also Ex. CW-2/5). Accused refused to receive and sign the reports/memos. Based on these reports, complainant raised a theft bill Ex. PW-2/F of Rs 2, 98,499/- against the accused.
V Sh. Deepu, videographer videographed the inspection/raid.
VI Complainant alleged that accused acted dishonestly with an intention to cause wrongful gain to himself and wrongful loss to it, employed an illegal method to steal electricity. He illegally abstracted and consumed electricity without paying the applicable tariff. He is thus alleged to have committed direct theft of electricity punishable under section 135 of Electricity Act, 2003.
VII On these averments, complainant lodged the instant complaint alleging commission of offence punishable under section 135 of Electricity Act, 2003 through its authorised representative Mr. Ashutosh Kumar.
3. Copy of complaint and supporting documents were supplied to the accused. After hearing arguments, notice u/s 251 of Cr.P.C for the offence under section 135 of Electricity Act, 2003 was served upon accused Md. Ismial to which he pleaded not guilty and claimed trial.
Ct. Case No. 902 of 2017 BRPL Vs. Md. Ismial Page No. 3 of 10Complainant's evidence:
4. In complainant's evidence, following four witnesses were examined.
1. Complainant produced Sh. Saurabh Sharma, Engineer BSES as PW-1. He deposed that he was a member of the raiding team and on 11.07.2016, at about 07:00 AM, he and the team comprising of Sh. Saurabh Sharma (Assistant Manager, BSES), Sh. Durgesh(Technician, BSES), Sh. Deepu (videographer, M/s Arora Photo Studio) along with Sh. Sumit Arora(DGM) and police officials visited and inspected the premises bearing shop at plot no. 36, Block A- 2, First Floor, Chankya Place-I, Uttam Nagar, New Delhi- 110059. He further deposed that accused and his daughter- in-law was present at the spot at the time of inspection. He further deposed that at the time of inspection one meter bearing no. 21120705 was found installed at site but the MCB of the meter was found off and the user was found indulged in direct theft of electricity by directly tapping from BSES Bus Bar. He further deposed that initially the accused co-operated the inspection team but later accused created resistance at time of seizure of illegal wires hence inspection team could not be able to seize the illegal wires from the site. He further deposed that connected load of premises was assessed by inspection team and it was found to be 4.503 KW for non-domestic purpose i.e. for running Dry Cleaning Work. He further deposed that videography Ct. Case No. 902 of 2017 BRPL Vs. Md. Ismial Page No. 4 of 10 was done at the site. He further deposed that raiding team prepared the Inspection Report Ex. PW2/A( also Ex. CW- 2/1), Load Report Ex. PW2/B( also Ex. CW-2/2) and Seizure memo Ex. PW 2/C (also Ex. CW-2/5) were prepared at the spot and the consumer refused to receive and sign the reports/memos. CD of the videography is Ex. CW-2/3(also PW 2/D). During his cross-examination by Ld. Defence counsel, he denied the suggestions put by the defence. He further corroborated the version of complainant in his cross- examination.
2. Complainant produced Sh. Durgesh Kumar, (Technician) BSES as PW-2. He deposed on the same lines as of PW 1. During his cross-examination by Ld. Defence counsel, he denied the suggestions put by the defence.
3. Complainant produced Sh. Ashutosh Kumar, Authorized Representative of complainant as PW-3. He deposed that he had been authorised vide Power of Attorney Ex. PW3/A to institute the present complaint. During his cross-examination by Ld. Defence counsel, he denied the suggestions put by the defence.
4. Complainant produced Sh. Sudesh Kumar S/o Sh. Babu Ram, Field Executive, BSES as PW-4. He entered the witness box with Consumption Pattern pertaining to meter no. 21120705 against CA no. 10319661 which is sanctioned in the name of Md. Ismail for the period of 31.03.2013 to 27.03.2017 which is Ex. PW4/A. During his cross-
Ct. Case No. 902 of 2017 BRPL Vs. Md. Ismial Page No. 5 of 10examination by Ld. Defence counsel, he denied the suggestions put by the defence.
Statement of accused:
5. Examined under section 313 of CrPC, accused pleaded innocence. He, inter alia, stated, " It is correct that raid was conducted. However, I was sleeping as I was ill. It is a false case".
Defence Evidence:
6. In defence evidence, defence has produced Sh. Mustbaik Ahmed as DW-1. He deposed that he is son of defendant. He further deposed that his father had filed a civil suit bearing no.
1966/2018 against the complainant/BSES wherein the Hon'ble court had pleased to pass a decree in favour of his father. He further proved the judgment passed by Ld. JSCC- cum- ASCJ- cum- Guardian Judge, Dwarka Courts, Delhi on 29.08.2019 along with memo of parties and decree which are now Ex. DW- 1/A(colly). He further deposed that against the said judgment and decree, the complainant has filed the present case and his father has been falsely implicated in the present case. During his cross- examination by Ld. counsel for the complainant, he denied the suggestions put by the defence. He further corroborated the version of complainant in his cross-examination.
7. Final arguments advanced by Ld. Counsel for the complainant and ld. counsel for accused heard. Case file perused carefully.
Ct. Case No. 902 of 2017 BRPL Vs. Md. Ismial Page No. 6 of 108. It is argued by Ld. Counsel for the complainant that on 11.07.2016, at about 07:00 AM, they conducted raid at Shop at Plot no. 36, Block- A-2, First Floor, Chanakya Place-I, Uttam Nagar, Near Church, New Delhi-110059 and during inspection, one meter bearing no. 21120705 was found installed at site and the accused was indulging in direct theft of electricity by illegal tapping from BSES Bus Bar (P & N) of BSES Pole and which was further connected to the load of premises. It is further argued by Ld. Counsel for the complainant that there is a videography to substantiate the same. It is also argued that in videography accused is categorically admitting the factum of theft. It is prayed that accused may be convicted.
9. On the other hand, it is argued by Ld. Counsel for accused that present case has been filed on the basis of false and fabricated facts just to harass the accused in the present matter. It is also argued by Ld. Counsel for accused that even in videography there is not even a hint that accused has committed the theft of electricity by illegal tapping or by any other means. It is also submitted that accused has never committed electricity theft and even in videography there is no link with the alleged illegal wire with the premises of the accused. It is also submitted that accused was sleeping at the impugned time as he was ill. It is also submitted that the impugned theft bill had been declared null and void vide judgment dated 29.08.2019 passed by Ld. JSCC-ASCJ-cum-Guardian Judge, Dwarka Courts. It is finally submitted by Ld. Counsel for accused that complainant failed to prove its case so the accused may be acquitted.
Ct. Case No. 902 of 2017 BRPL Vs. Md. Ismial Page No. 7 of 1010. After hearing the submissions of both the sides and before proceedings further with deciding the present case, it is inevitable to discuss here as to whether the accused is a consumer within the meaning of section 2(15) of Electricity Act, 2003 or not. To decide this, the provision as enumerated under Section 2(15) of Electricity Act, 2003 is quoted here as under:
"Consumer" means any person who is supplied with electricity for his own use by a licensee or the Government or by any other person engaged in the business of supplying electricity to the public under this Act or any other law for the time being in force and includes any person whose premises are for the time being connected for the purpose of receiving electricity with the works of a licensee, the Government or such other person, as the case may be.
11. After going through the above mentioned definition/meaning of consumer and applying the same in the factual matrix of the present case, it is observed by the court that accused Md. Ismial was admittedly living in the premises in question. He was using electricity, which was supplied by the complainant, in the impugned premises. A meter bearing no. 21120705 had already been installed in the impugned premises. Accordingly, accused Mohd. Ismial is coming within the ambit of meaning of consumer as provided under Section 2(15) of Electricity Act, 2003.
12. It is the allegation of the complainant that they conducted raid on 11.07.2016 at about 07:00 AM and inspected the impugned premises and a meter bearing no. 21120705 was found at the site. It is also alleged that the accused was found involved in direct theft of electricity by illegal wires from BSES Bus Bar Ct. Case No. 902 of 2017 BRPL Vs. Md. Ismial Page No. 8 of 10 (P & N) of the BSES Pole and which was further connected load to the load of the said premises. It is also alleged that the illegal material through which the impugned theft was committed had not been seized due to resistance by user.
13. It is the contention of the accused through out the trial that he had never committed theft and present case has been filed on the basis of false and concocted facts. It is also observed that in the videography which is available in CD Ex. CW-2/3, there is nothing on record to show/depict that the said illegal wires are going even in the impugned premises.
14. It is observed by the court that in the complaint it has been written that area where impugned premises is situated is a sensitive area and due to that fact, no illegal wire/meter has been seized. However, very strangely it is clearly seen in the videography Ex.CW-2/3 that no where it is seen or heard that any resistance had been created by the occupants or neighborers of the premises. It is pertinent to mention here that videography Ex. CW-2/3 is sufficiently lengthy and BSES officials are seen doing their work without any hindrance. It is also observed that there is apparently no resistance. In the videography Ex.CW-2/3, nothing regarding impugned theft is seen. It is also observed that there is contradiction between the averment of PW-1 and PW-2 to the effect that PW-1 categorically averred that all documents were prepared on the spot whereas PW2 in his cross-examination has categorically stated that all these documents were prepared in BSES office. As far as the consumption pattern Ex.PW-4/A is Ct. Case No. 902 of 2017 BRPL Vs. Md. Ismial Page No. 9 of 10 concerned, court found no extraordinary variation to suggest the impugned theft. There is nothing on record except the bald avernments to substantiate the allegations as alleged in the complaint. It is also pertinent to mention here that impugned theft bill had been declared null and void vide judgment dated 29.08.2019 passed by Ld. JSCC-ASCJ-cum-Guardian Judge, Dwarka Courts.
15. In view of the above mentioned, the court is of the view that the complainant has miserably failed to even give a hint that accused has committed the alleged theft as alleged through the present complaint. As the complainant has failed to prove the impugned theft, no question arises of presumption as provided under Section 135 of Electricity Act.
16. Accordingly, accused Md. Ismial is acquitted of offence punishable under sections 135 of Electricity Act, 2003.
17. Accused has already furnished personal bond and surety bond in terms of Section 437-A Cr.P.C. The same have already been accepted and shall remain in force for a period of six months from today.
18. File be consigned to Record Room.
Pronounced in the open court on this 11th May, 2023 (VINOD KUMAR MEENA) ASJ: Special Electricity Court South West District, Dwarka Courts New Delhi Ct. Case No. 902 of 2017 BRPL Vs. Md. Ismial Page No. 10 of 10