Delhi District Court
Bses vs . Mohd. Furkan @ Furkan, Cc No. 200/12 ... on 27 February, 2015
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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. : 200/12
Police Station : Jaitpur, New Delhi
U/s : 135 of Electricity Act, 2003
Unique ID No. : 02406 RO144592012
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
Shri Mohd. Furkan @ Furkan @ Phurkan
S/o Shri Mohd. Phajil
R/o C20, Kanchan Kunj,
Madanpur Khadar, New Delhi.
...Accused
Appearances: AR with Sh. Rajesh Kumar, counsel for
complainant
Accused Mohd. Furkan @ Furkan is present on
bail along with Sh. A.A. Khan, Advocate
Complaint instituted on : 07.06.2012
Judgment reserved on : 19.02.2015
Judgment pronounced on : 27.02.2015
BSES Vs. Mohd. Furkan @ Furkan, CC No. 200/12 Page no. 1 of 13
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JUDGMENT
1. The case of the complainant in brief is that on 31.03.2012, the officers of the complainant company namely, Shri Jai Gopal Gautam - Assistant Manager, Shri Raja Akhtar - Engineer and Shri Rajesh Kumar - Engineer conducted inspection at the premises i.e. C20, Kanchan Kunj, Madanpur Khadar, New Delhi and it was found by the inspection team that there was not meter found installed at the site and that the accused was indulging in direct theft of electricity by tapping directly from BSES LT line mains. It is further mentioned in the complaint that inspection team assessed the total connected load of the premises and same was found to be 5.235 KWs for nondomestic purpose. It is further mentioned in the complaint that inspection team prepared the inspection report, load report, seizure memo at site and necessary photography/videography was also done at the site.
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 was raised by the complainant for Rs.4,51,434/ with due date as 17.04.2012 and same was served upon the accused but he failed to pay the said theft bill.
BSES Vs. Mohd. Furkan @ Furkan, CC No. 200/12 Page no. 2 of 13 3
3. The case was fixed for presummoning evidence and vide order dated 01.08.2012 summons were issued to the accused and accused had appeared.
4. Notice u/s. 251 Cr.P.C. for the offence punishable u/s. 135 of the Electricity Act, 2003 against accused Mohd. Furkan @ Furkan was framed, to which he pleaded not guilty and claimed trial on the ground that he was not committing any theft of electricity. Accused further answered that he had occupied the premises shortly before the date of inspection and that the machines installed at the premises had not been formally commissioned. Accused further answered that false and fabricated case has been made out against him and that he is not liable to pay any loss or damage as claimed by the complainant company.
5. In order to prove the case of the complainant, four witnesses were produced, which have been discussed below.
6. The statement of the accused was recorded u/s. 313 Cr.P.C. and the accused denied the evidence as false and answered that he was not the owner of the premises in question and that he had not BSES Vs. Mohd. Furkan @ Furkan, CC No. 200/12 Page no. 3 of 13 4 committed any theft of electricity. Accused further answered that as he was not the owner of the premises in question, he had not no knowledge of the exhibited documents and that the said premises belonged to his brotherinlaw (jija ji), who was running a flower pot manufacturing unit and the owner of the said premises was Shri Sikandar Singh Chauhan resident of Madanpur Khadar and that he took the said premises on rent two months prior to date of inspection. Accused further answered that he was neither the owner nor the user of the premises in question and that the said he was residing at House No. 139, Mohalla Painth Itawar, Sarai Tareen, Hayat Nagar, Sambhal, Moradabad and he also placed on record copy of his driving license as Ex. D1 and copy of voter Icard as Ex. D2. Accused further answered that he was not committing any direct theft of electricity at the premises in question on the date of inspection and that he is not liable to pay any amount as allegedly claimed by the complainant company. However, accused did not opt to lead defence evidence.
7. PW1 Shri Jai Gopal Gautam was the Assistant Manager of the complainant company, who deposed that on 31.03.2012 at 12.01 p.m., he alongwith Shri Raza Akhtar, Shri Rajesh Kumar and Shri Inderjeet visited and inspected the premises bearing no. C20, BSES Vs. Mohd. Furkan @ Furkan, CC No. 200/12 Page no. 4 of 13 5 Kanchan Kunj, Madanpur Khadar, New Delhi and that on reaching the said premises they found that one factory was being run there and when they asked about the electricity meter from the persons, who were present there, they replied that there was no electricity meter installed in the premises. PW1 further deposed that they asked from the said persons as to what was the source of electricity and they replied that owner/user of the factory was not present and they had no knowledge of the same and that said persons did not show any documents relating to electricity meter. PW1 further deposed that thereafter, they entered into the factory to inspect the same and that they found that there was no elect city meter installed there and that direct theft of electricity was being committed with the help of two black colour aluminium wires of size 6 MM square, which were connected to BSES pole. PW1 further deposed that they assessed the total connected load and found same to be 5.235 KW for commercial purpose. PW1 further proved inspection report and load report as Ex. CW2/1 and Ex. CW2/2, respectively. PW1 further deposed that they offered the said documents to employees who were present at the site to sign and receive, but they refused the same. PW1 further deposed that they removed and seized part of the wires upto approachable limit from the spot and PW1 further proved the seizure memo as Ex. BSES Vs. Mohd. Furkan @ Furkan, CC No. 200/12 Page no. 5 of 13 6 CW2/4. PW1 also also identified and proved the said wires as Ex. P2. PW1 further deposed that the employees who were present at the spot disclosed the name of Furkan as owner / user of the factory. PW1 also identified the videography contained in the compact disc and he also proved the said compact disc as Ex. CW2/3.
8. In his cross examination on behalf of the accused, PW1 answered that raiding team went to site on prior information received through their division office and that no such record of the information was kept in their office. After going through the videography, PW1 denied the suggestion that only one fan and one handgrinder were functional as depicted in the said videography. PW1 further denied the suggestion that load of energy was not connected to BSES pole through illegally installed wires, which were collectively Ex. P2. PW1 admitted it as correct that they had not found any document at the spot regarding the ownership/user of the premises in question.
9. PW2 Shri Raza Akhtar was the Engineer who deposed that on 31.03.2012 at about 12.00 p.m., he along with Shri Jai Gopal Gautam, Shri Rajesh and Shri Inderjeet, visited and inspected the BSES Vs. Mohd. Furkan @ Furkan, CC No. 200/12 Page no. 6 of 13 7 premises bearing no. C20, Kanchan Kunj, Madanpur Khadar, New Delhi and that on reaching the said premises, they found that a cardboard cutting factory was going on inside the said premises and that electricity was being used by directly tapping and that he asked the persons present at the spot namely Furkan, to got the electricity meter checked, but said Furkan replied that there was no meter installed at the relevant time. PW2 further deposed that they assessed the total connected load and the same was found to be 5.235 KWs. PW2 further deposed that they removed and seized the two number of black colour aluminium wire of size 6 mm.sq. and length approximately 12 inches. PW1 further deposed that nothing else was done besides the said things. PW1 further proved the inspection report including meter report, 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 the accused Furkan but he refused to receive and sign the same. PW2 also identified the videography contained in the compact disc and he also proved the said compact disc as Ex. CW2/3. PW2 also identified the said seized wires as Ex. P2.
10. In his cross examination on behalf of the accused, PW2 answered that they had received a complaint from Division Office BSES Vs. Mohd. Furkan @ Furkan, CC No. 200/12 Page no. 7 of 13 8 to conduct the raid at the premises in question on the same day at about 12.00 p.m., however, he could not recollect as to whether the said complaint was in writing or oral. PW2 denied the suggestion that there was no record kept in the office to conduct the said raid and that was why, he was not in position to produce the written order to that effect or to remember the name of the officer, who directed to conduct the said raid. PW2 answered that there was no electric pole of the complainant company in the gali in front of the premises in question. PW2 volunteered that the illegal tapping was being done from the some pole from the back gali of the premises in question. PW2 further answered that the pole number in the back gali was not visible. PW2 denied the suggestion that the answer he gave that tapping was done from the pole at the back gali of the premises, was an afterthought. PW2 answered that they had prepared a diagram in the inspection report, but no separate site plan was prepared showing the alleged tapping. The videography was displayed at the request of the defence counsel during the cross examination, on the ground that one fan and one handgrinder machine were being run by generator, but in the videography, no generator was found depicted and the said fan and grinder machine and other gadgets were not found functioning which was also admitted by the BSES Vs. Mohd. Furkan @ Furkan, CC No. 200/12 Page no. 8 of 13 9 witness. PW2 further denied the suggestion that there was a generator kept outside the premises for running the said fan and grinder, which was deliberately covered by them in the videography in order to falsely implicate the accused. Again the videography was displayed at the request of the ld. defence counsel and PW2 pointed out in the videogaphy two wires of black colour, coming inside the premises towards the roof and the witness pointed out that same were being used for illegal tapping, but the other end to which the said wires were connected, was not visible in the videography. PW2 further answered that accused told his name at the spot himself. PW2 replied that he inquired from accused Furkan as to who was the owner of the premises to which he replied that he did not know the name of the owner, who would be coming in evening. PW2 further answered that accused Furkan did not tell that he was the employee in the said premises.
11. PW3 Shri Inderjeet was the videography from M/s. Arora Photo Studio, deposed that he conducted the videography on 31.03.2012 at about 12.00 p.m., at premises bearing no. C20, Kanchan Kunj, Madanpur Khadar, New Delhi, on the directions of Shri Jai Gopal Gautam. PW3 identified the said videography and proved the compact disc of the same as Ex. CW2/3. BSES Vs. Mohd. Furkan @ Furkan, CC No. 200/12 Page no. 9 of 13 10
12. PW4 Shri G.B. Barapatre prepared the theft bill Ex. CW2/5 and in his cross examination he replied that he was not the member of the raiding team and that he had no personal knowledge of the present theft case.
13. PW5 Shri Ashutosh Kumar was the AR of the complainant company who proved the present complaint filed as Ex. CW1/1 and also proved his GPA as Ex. CW1/2 and he deposed that he has no personal knowledge of the facts of the case. PW5 further deposed that his affidavit is Ex. PX. In his cross examination on behalf of the accused, PW5 replied that he did not visit the spot at any point of time.
14. There is a material contradiction in the deposition of PW1 and PW2, which goes to the root of the matter as PW1 in his examination in chief deposed that the employees present at the spot disclosed the name of the accused Furkan as owner/user of the factory at the time of inspection, whereas as per cross examination of PW2, accused himself told his name at the spot and he had inquired from accused Furkan with regard to owner of the premises to which he responded that he (the accused) did not BSES Vs. Mohd. Furkan @ Furkan, CC No. 200/12 Page no. 10 of 13 11 know the name of the owner, who would be coming in the evening. In view of the said contradiction, it is difficult to believe as to who was the user/owner of the factory at the relevant time and more so when it is admitted case of PW1 that they have not found any document at the spot regarding the ownership/user of the spot.
15. Further, the circuit of electricity for the alleged theft has not been established in the case because PW2 in his cross examination admitted that there was no electric pole of the complainant company in front of the premises and the illegal tapping was being done from some pole from the back gali of the premises in question and the said pole number in the back gali was also not visible. PW2 has admitted during the display of videography in his cross examination that though two wires of black colour were depicted coming inside the premises from outside towards the roof of the premises, which were allegedly used for illegal tapping, but the other end to which the said wires were connected, was not visible in the videography.
16. It is vehemently contended on behalf of the complainant that there is an application on the judicial record dated 07.01.2013, wherein the accused has requested for direction to the BSES Vs. Mohd. Furkan @ Furkan, CC No. 200/12 Page no. 11 of 13 12 complainant to provide electricity connection in the premises in question, wherein he himself claimed to be the tenant of the premises and the said application establishes the connection of the accused with the premises in question.
17. I am unable to accept the said contention raised on behalf of the complainant for the reasons that the said application in itself is not maintainable under the law before this Special Court because it has no such jurisdiction to grant the relief claimed therein. Moreover, the said application has not been proved on record like any other document by calling the counsel for the accused who moved the said application and as such the said application cannot be treated under the law as the incriminating evidence against the accused so as to be put to him under section 313 Cr.P.C. Even otherwise, the contents of the application go to show that the accused claimed himself as a tenant in the premises, but in para 3, he has clearly mentioned that owner of the plot had applied for the electricity connection at the premises in question but no connection has been given till date. As such it cannot even be taken as admission on the part of the accused having some connection with the premises.
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18. In the said overall circumstances of the case, I am of considered opinion that the complainant has miserably failed to link the accused with the premises in question as the user or owner of the same and the guilt of the accused has not been established beyond reasonable doubt. Hence, the benefit of doubt he extended to the accused and accused Mohd. Furkan @ Furkan @ Phurkan is acquitted of offence punishable 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 27.02.2015 ADDITIONAL SESSIONS JUDGE
SPL. ELECTRICITY COURT
SAKET COURTS, NEW DELHI
BSES Vs. Mohd. Furkan @ Furkan, CC No. 200/12 Page no. 13 of 13