Delhi District Court
Complainant vs Saroj Devi on 31 May, 2011
IN THE COURT OF SURESH KUMAR GUPTA: ASJ SPECIAL
ELECTRICITY COURT, DWARKA, NEW DELHI
CC No. 435/10/08
ID No. 02405R0631212008
Section 135 Electricity Act, 2003.
BSES Rajdhani Power Ltd
Having its registered office at:
BSES Bhawan Nehru Place,
New Delhi 110019
Also at:
Corporate, Legal and Enforcement Cell,
Near Andrews Ganj Market,
New Delhi 110049
........................ Complainant
Versus
Saroj Devi
W/o Raj Kumar
R/o RZH 721, Gali No 5,
Adjoining to RZH720A, Raj Nagar,
Part II, New Delhi 110045
......................... Accused
Date of institution: 28.2.2008
Arguments heard on: 25.05.2011
Judgment passed on : 30.05.2011
JUDGMENT:
1. The facts of the case are like this. On 1.11.07 at 11:05 am .. 2 ..
officials namely G L Meena, Manager; D C Sachdeva, Engineer; Anil Kaushik, Engineer; Ram Chander, Engineer officials of the complainant company along with photographer from M./s Arora Photo Studio inspected the premises No. RZH721, Gali No 5, adjoining to RZH720 A, Raj Nagar Part II, New Delhi. The premises is used and occupied by accused. No meter was installed in the premises. The accused was found indulging in direct theft of electricity by tapping BSES LV mains through wires which were further connected to the connected load of the premises. The connected load was 17.205 KW/DX. Videograhy was done at the spot. Inspection report, meter details and load report were prepared at the spot. The wires of blue and yellow colour were taken into possession vide separate seizure memo . A theft bill of Rs 2,75,612/ was raised against the accused which remained unpaid. Hence, this complaint.
2. The complainant examined two witnesses in pre summoning evidence. Accused was summoned for the offence U/s 135 of Electricity Act (herein after referred to as Act) . NOA U/s 251 Cr.P.C was put to the accused to which she pleaded not guilty and claimed trial.
3. The complainant examined five witnesses. Complainant .. 3 ..
evidence was closed. Accused was examined U/s 313 Cr.P.C wherein she has taken the defence that premises was energized through legally sanctioned NS Connection. However, she has appeared DW1 in support of her defence.
4. PW3 Pankaj Tandon stated that he is authorized by the complainant company to sign, file and proceed with the complaint Ex. CW1/A on the basis of authority Ex. CW1/B given to him by the complainant.
5. PW4 Vivek Arora proprietor of M/s Arora Photo Studio, stated that on 1.11.2007 Satender Kumar conducted the videography of premises No RZH721, Gali No 5, adjoining to RZH720 A, Raj Nagar Part II, New Delhi and handed over one cassette and camera to him. He downloaded the data in a CD Ex CW2/E. In the cross examination he stated that he did not go to the site.
6. PW1 Ram Chander Kataria stated that on 1.11.07 at 11:05 am he along with PW2, 5 and other officials of the complainant company inspected the premises No RZH721, Gali No 5, adjoining to RZH720 A, Raj Nagar Part II, New Delhi . The premises is used by accused . No meter was installed in the premises. The accused was indulging in direct theft of electricity by tapping BSES LV mains through wires which were further connected to the connected load of .. 4 ..
the premises. The connected load was 17 KW for domestic purposes. Videography was done by videographer from M/s Arora Photo Studio. CD Ex CW2/E is identified by him. 2 PVC insulated blue colour and yellow colour wires measuring 1.5 metre each were removed and seized vide memo Ex. CW2/D. The wires Ex P1 and P2 are identified by him. Meter report, inspection report and load report Ex CW2/AC were prepared which were offered to the accused who refused to receive and sign the same. Likewise, is the testimony of PW2 D C Sachdeva and PW5 G L Meena in their examination in chief.
7. In the crossexamination, PW1 stated that he cannot say whether erstwhile DESU/DVB provided NS connections to some of the premises including premises in question or not. It is correct that NS connections were provided in nonelectrified areas. The suggestion is denied that immersion rod, geyser, iron, cooking heater, 5 coolers, 5 televisions, 1 grinder, one submersible pump, one atta chakki and some of the bulbs do not belong to the accused. The distance between LV mains and premises is around 30 metres . The wires were connected in MCB board installed in the premises. The inspection report was prepared by him as a member of the team. The suggestion is denied that premises was energized through NS .. 5 ..
connection at the time of raid. The suggestion is denied that accused was not present at the spot.
8. PW2 D C Sachdeva stated in the cross examination that accused did not show any paper with regard to NS connection. The distance between the LV mains and premises is around 7080 metres. The suggestion is denied that connected load shown in the videography pertains to the other premises and not to the accused. Mark A is the document showing the issuance of NS DL connection to the premises in question. Mark B is the payment made to DVB in the year 2003. The suggestion is denied that connected load at the given time did not exceed 2 KW as sanctioned by DVB. The inspection report was prepared by R C Kataria. He cannot say whether any meter is required to be installed in NS connection. The suggestion is denied that he did not go to the spot for inspection. The suggestion is denied that premises was energized through NS connection.
9. PW5 stated in the cross examination that wire Ex P1 in complete form was seized from the spot. The distance between LV mains and premises is around 10 metres. Mark A pertains to the NS connection of premises in question. The suggestion is denied that premises was energized through legally sanctioned NS connection.
.. 6 ..
The NS connection scheme stands cancelled which is no more applicable. He is not aware whether any intimation was given to the accused to this effect or not. The suggestion is denied that NS scheme was not cancelled after taking over from DVB. The suggestion is denied that load is exaggerated which was below 2 KW. The suggestion is denied that inspection report was not prepared at the spot or he did not carry out the inspection or accused was not present at the spot.
10. DW1 Saroj Devi is accused . She stated that there is no electricity pole in her gali. DVB had granted NS connection against the payment of Rs 100/200 per month. She deposited the charges in 1998 vide receipt Ex DW1/A. In 2000, she was asked to deposit a sum of Rs. 26,745/ by DVB and said amount was deposited vide receipt Ex DW1/B. She also deposited a sum of Rs. 14,260/ towards NS connection as per receipt mark A. She is still using NS connection without meter. In the crossexamination she admitted that receipts Ex DW1/A and B do not disclose address and husband's name of Saroj Devi. She admitted that there was no meter at the time of inspection. She admitted that she has no document to show that DVB authorized her to use electricity without meter. It is correct that on 1.11.07 an inspection was carried out by the officials of complainant company.
.. 7 ..
(Vol. She was not present at the spot.). The inspected premises is measuring 200 sq yards. The suggestion is denied that there was a connected load of 17 KW. She admitted that she did not write any letter to DVB or BSES to install the meter.
11. DW2 Virender Singh is clerk from the office of complainant company who stated that record pertaining to NS connection of District Palam is not available/traceable. NS connections were discontinued after the electrification of the area. There is no scheme for NS connection as on date.
12. Ld counsel for the complainant submitted that premises in question was inspected on 1.11.2007 by the officials of complainant company . He further submitted that accused is user and occupier of the premises who was found indulging in the direct theft of electricity from LV mains as no meter was installed in the premises. Ld counsel for the accused submitted that erstwhile DVB/DESU had floated a scheme for NS connections in nonelectrified areas. He further submitted that premises in question falls in nonelectrified area and accordingly NS connection against a payment of Rs 100/200 p.m was granted to the accused and even thereafter charges were paid by the accused against NS connection for the installation of meter but in vain.
.. 8 ..
13. The burden to prove the case never shifts. It lies on the complainant. The defence version may be false but complainant cannot derive any advantage from the falsity or other infirmity of the defence evidence so long as it does not discharge the initial burden to prove its case beyond shadow of reasonable doubt.
14. Heard and perused the record. The complainant company has examined 5 witnesses in order to prove its case whereas accused has examined two witnesses to controvert the case of the complainant. PW1, 2 and 5 are the members of the raiding team so their testimony is material to judge the guilt of the accused. Their testimony clearly shows that on 1.11.2007 at 11:05 pm an inspection was carried out in the premises. Accused, while appearing as DW1, has admitted the inspection of premises carried out by officials of BSES. The factum of inspection stands admitted. The premises is used by the accused. The accused is in possession of the premises. The accused was present at the spot. The accused is identified by the members of the raiding team. No defence is taken by the accused that premises is used by some other person. All this shows that premises is used by the accused who was present at the spot at the time of inspection.
15. The basis defence of the accused is that area in question was nonelectrified and NS Scheme was floated by erstwhile DVB.
.. 9 ..
NS connection was provided in the premises in question against the payment of Rs 100/200 per month. The evidence on the file shows that no documentary evidence is placed on record with respect to the grant of NS connection. However, PW2 in the cross examination stated that NS connection was provided to the premises in question by DVB. DVB was taken over by complainant company in joint venture with State Government after the year 2003. The testimony of PW's show that this scheme stands cancelled by the complainant company. There is nothing on the record to show that scheme is still in existence. Nothing is brought on record by the accused to show that she is still making the payment of Rs. 100/200 per month against any NS connection, if in existence. The production of monthly payment bills towards NS connection is essential in case the accused is banking upon NS connection. No payment against any bill is placed on record. The evidence nowhere shows that NS scheme was in existence on the date of inspection. The argument of ld counsel for the accused that accused is drawing electricity through NS connection on the day of inspection does not hold water.
16. Smt Saroj Devi has made certain payments to DVB as apparent from receipts Ex DW1/A dated 29.4.98 and DW1/B dated 6.4.2000. The receipts nowhere show that the payment was with .. 10 ..
respect to the NS connection. Moreover, NS connections were against very limited load at a very nominal rate as submitted by ld counsel for the accused. The question of making a payment of Rs 26475/ vide receipt Ex. DW1/B does not arise in case it was for NS connection. I am of the view that the payment vide receipt Ex DW1/A and B cannot be said to be the payment towards installation of meter of premises in question during NS scheme. To my mind, the accused has failed to disclose the real purpose for which the alleged payment was deposited with DVB and this payment cannot be towards NS connection. The accused cannot draw any support from the receipts.
17. Ld counsel for the accused has pointed out contradictions in the testimony of PW's with respect to the distance between BSES LV mains and the premises as all the PW's have given a different version to this effect. I have perused the testimony of PW's . PW1 stated that the distance between BSES LV mains and premises is 30 metres PW2 stated that distance is 7080 metres and PW3 stated that the distance is 10 metres. It is correct that there is no consistency with respect to distance but this contradiction alone is not sufficient to view their testimony with the aid of spectacles as testimony of PW1, 2 and 5 is consistent on other material points. Hence, contradiction in question is inconsequential in nature and does not affect the merits of .. 11 ..
the case.
18. The testimony of PW's clearly shows that on 1.11.07 at 11 am inspection was carried out in the premises No. RZ H 721, Gali No. 5, Raj Nagar Part II, Palam, New Delhi. The premises in question belongs to the accused. The accused is user of the premises. No meter was installed in the premises. There was direct theft of electricity from BSES LV mains through wires. The wires are connected to MCB and thereafter to the connected load of the premises and this fact is apparent from CD Ex. CW2/E. The CD shows that lights are on. The accused has failed to explain how she was drawing the electricity when there is no meter in the premises. The wires were removed and taken into possession as apparent from seizure memo Ex CW2/D. The connected load was noted down. Majority of the appliances are even reflected in the CD Ex CW2/E. PW1 has denied the suggestion that appliances such as geyser, iron, heater, coolers, television, submersible pump, atta chakki pertain to the premises of some other person. It was the duty of the accused to put any question or suggestion that such appliance are owned by a particular person or that the premises shown in CD does not pertain to the premises in question. There is nothing on the record to show that appliances do not belong to the accused. The connected load is 17.25 KW. DW1 .. 12 ..
admitted in the cross examination that premises is measuring 200 sq yards. It is a big premises and the existence of such load cannot be ruled out. No doubt can be created that load in any manner is exaggerated. The entire evidence shows that accused was using the electricity for the premises in question by tapping the BSES LV mains. The testimony of PW's is consistent. No major contradiction has come on record in their testimony in order to put any dent in the case of the complainant. They have no reason to depose against the accused as there is no evidence of enmity on record. The testimony of PW's is relied upon.
19. In the light of my aforesaid discussion, I have no hesitation to hold that complainant company has proved the case against the accused beyond shadow of reasonable doubt. Hence, accused is held guilty U/s 135 Electricity Act, 2003 and is convicted. Let the file to come up for quantum of sentence on 31.5.2011.
Announced in the open
Court on dated 30.05.11 (Suresh Kumar Gupta)
ASJ: Special Electricity Court
Dwarka: New Delhi
IN THE COURT OF SURESH KUMAR GUPTA: ASJ SPECIAL ELECTRICITY COURT, DWARKA, NEW DELHI CC No. 435/10/08 ID No. 02405R0631212008 Section 135 Electricity Act, 2003.
BSES Rajdhani Power Ltd ........................ Complainant Versus Saroj Devi .................. Convict ORDER ON POINT OF SENTENCE:
1. Ld counsel for the complainant submitted that convict was indulging in direct theft of electricity and such kind of convict should not be shown any kind of leniency.
2. Ld counsel for the convict submitted that convict is a first offender. He further submitted that convict is a lady who is having three daughters. He further submitted that one of the daughter is suffering from paralysis . He further submitted that husband fo the convict is a 4th class employee. He further submitted that entire family is being looked after by the convict and any substantive sentence will affect the entire family so keeping in view these facts a lenient view be taken in favour of the convict.
3. Heard and perused the record. The convict is a first offender. There is nothing on the record to show that she has been .. 2 ..
previously convicted for the same offence. The convict is a lady She has three daughters and one of them is alleged suffering from paralysis. She is looking after her family and substantive sentence will affect her family. I am of the view that interest of justice shall be met if sentence of fine is imposed . The load is 17.250 KW for domestic purposes and fine imposed should not be less than three times of the financial gain on account of theft of electricity. Hence, convict is sentenced to pay fine of Rs. 4,13,418/ and in default of payment of fine to undergo SI for 5 months. The convict is also liable to pay civil liability U/s 154 (5) of the Act so amount of civil liability shall be paid to the complainant towards satisfaction of the civil liability, out of fine, if realized. The amount already deposited shall be adjusted towards civil liability.
ORDER ON CIVIL LIABILITY:
4. Section 154 (5) of the Act says that civil liability shall not be less than an amount equivalent to two times of the tariff rate applicable for a period of 12 months preceding the date of detection of the theft of energy or exact period of theft, if determined whichever is less. The civil liability is to be recovered as the decree of civil court.
5. The convict have been held guilty U/s 135 of the Act. The connected load was 17.250 KW. The bill was raised for a sum of Rs .. 3 ..
2,75,612/ . The bill is raised on the basis of consumption for a period of 12 months multiplied by two times by way of penalty. Accordingly, the civil liability on the basis of tariff rate is assessed at Rs. 2,75,612/. Copy of the order be given to the convict free of cost.
File on completion be consigned to record room.
Announced in the open
Court on dated 31.05.11 (Suresh Kumar Gupta)
ASJ: Special Electricity Court
Dwarka: New Delhi