Delhi District Court
State vs Devanand @ Devender & Anr. Fir No.27/18 ... on 11 September, 2019
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. : 522/18
SC NO. : 186/18
FIR No. : 27/18
PS. : Neb Sarai, New Delhi.
Under Section : 135 of Electricity Act, 2003
STATE
Versus
1. DEVANAND @ DEVENDER (USER)
S/O LATE SH.SUKHPAL.
(Proceedings against said accused person
stands abated as the accused was expired on 01.09.2019).
2. HEERA LAl
S/O LATE SH.LONG RAM.
BOTH AT:
C1211, J.J.COLONY, TIGRI,
NEW DELHI110062
...ACCUSED
Case instituted on : 03.10.2018
Judgment reserved on : 28.08.2019
Judgment pronounced on : 11.09.2019
STATE Vs.DEVANAND @ DEVENDER & ANR. FIR No.27/18 Page no. 1 of 12
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JUDGMENT
1. The case of the prosecution in brief is that a complaint was received at police station Neb Sarai on the basis of which above said FIR no.27/2018 was registered under Section 135 Electricity Act, 2003 against the accused persons.
2. The version of the complainant is that on 17.08.2015 at around 2.35 p.m, a joint inspection team consisted of officials of the complainant company i.e. Sh.Ashish Kumar SinghSenior Manager, Sh.Mukesh KumarGET and Sh. Prem SinghTechnician conducted inspection at C1211, J.J.Colony, Tigri, New Delhi110062 (hereinafter referred as premises in question).
3. At the time of inspection no electricity meter was found installed at site and accused persons were found indulged in direct theft of electricity through directly tapping from distribution box with the help of illegal wires and found using total connected load of 8.985 KW for domestic as well as nondomestic 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.
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4. It is further mentioned in the said complaint that complainant company has assessed the civil liability of Rs.2,48,694/ against the accused persons and theft as per DERC Regulations and tariff order was raised accordingly with due date as 08.09.2015 and the same was duly sent to the accused persons. On the basis of the aforesaid complaint, present FIR bearing no.27/18 was registered and after investigation challan was filed.
5. Cognizance of the offence punishable under Section 135 of the Electricity Act was taken by my Ld. Predecessor of this Court on 03.10.2018 and accused persons were summoned accordingly. Both accused persons appeared before the court alongwith their counsel and enlarged on bail vide order dated 06.03.2019.
6. Notice of accusation under Section 251 Cr.P.C. was put to the accused persons namely Hira Lal and Devanand @ Devender on 08.03.2019 and they pleaded not guilty and claimed trial.
7. In order to prove the case, prosecution has produced four witnesses, which have been discussed below.
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8. Statement of both the accused was recorded under Section 313 Cr.P.C.
separately on 19.08.2019. Accused persons pleaded their innocence and denied the evidence on the ground that they had not committed any offence as alleged by the complainant company and submitted that false and fabricated case has been filed against them. They have further submitted that complainant company had already issued NOC with regard to the payment of the theft bill amount.
9. I have heard arguments on behalf of both parties and also gone through the record. CD of videography also displayed on the computer screen of the court.
10. PW1 HC Sh.Satyanarayan (IO), who has deposed that on 17.01.2018, the present FIR was handed over to him for investigation. He called the complainant Ashish telephonically and he came to police station on 22.01.2018 and joined the investigation. He along with him visited the premises in question and prepared the site plan at his instance and proved the same as Ex.PW1/A. He recorded the statement of the witnesses under Section 161 Cr.P.C. which is Ex.PW1/B (colly). He served notices under Section 41 (A) Cr.P.C. upon accused persons which is Ex.PW1/C (colly). STATE Vs.DEVANAND @ DEVENDER & ANR. FIR No.27/18 Page no. 4 of 12 5
11. In crossexamination, PW1 has denied the suggestion that the investigation was conducted while sitting at police station. He admitted that he had not recorded statement of accused persons and he did not go through the CD during investigation.
12. PW2 Sh.Ashish Kumar SinghDGM, BRPL, who deposed that on 12.08.2015, he alongwith Sh.Prem Lineman, one DET and Sh.Sanjiv photographer visited and inspected the premises i.e. C1211, J.J.Colony, tigri, New Delhi. He further deposed that on reaching the spot, they found that there was no electricity meter installed at site and user found indulged in direct theft of electricity by illegal tapping from LV Mains with the help of illegal wire. He further deposed that the connection load of the premises in question was assessed which was found to be 5.6 KW for domestic as well as non domestic purpose. He proved the documents prepared at site i.e. Ex.PW2/A (colly), Ex.PW2/B and Ex.PW2/C. He identified the videography of inspection containing in the CD Ex.PW2/D. He further deposed that illegal wires i.e. two core black colour aluminium cable having size 10 sq. mm and in length one meter approximately was removed and seized. He has identified the cable as Ex.P2. He has proved the complaint given by him against accused regarding theft of electricity before PS as Ex.PW2/E. STATE Vs.DEVANAND @ DEVENDER & ANR. FIR No.27/18 Page no. 5 of 12 6
13. In crossexamination, PW2 has replied that the inspection was carried out in the routine inspection and the same was conducted on the instruction of DGM (business). He has denied the suggestion that nondomestic load was not related with the accused persons. He could not tell if the shop was running by Dr.Sinha. He admitted that the accused is not depicted in the videography. He has replied that during inspection, user disclosed the name of the owner as Hira Lal. He admitted that no document was produced by the user at the time of inspection. He admitted that no document was demanded by the inspection team from the user. He further replied that during inspection, the shop at the premises was closed. He has denied the suggestion that the load was wrongly assessed and it is exorbitant. He admitted that the complaint was not filed within 24 hours.
14. PW3 W/HC Shyam Kaur/Duty officer who has proved the FIR in the present case Ex.PW3/A and the affidavit under Section 65B of the Indian Evidence Act Ex.PW3/B.
15. PW4 Sh.Amitabh Srivastav (Manager) BRPL, who stated that theft bill was prepared by him and proved the same as Ex.PW4/A. STATE Vs.DEVANAND @ DEVENDER & ANR. FIR No.27/18 Page no. 6 of 12 7
16. In crossexamination, PW4 has denied the suggestion that he is not aware of exact regulations of DERC under which the bill is prepared. He did not have any personal knowledge regarding the present case. He has denied the suggestion that theft bill was prepared in a mechanical manner and not as per DERC guidelines. He has further denied the suggestion that the theft bill has prepared as per company's own hidden formula. He did not consider the videography at the time of preparation of bill.
17. It was submitted by ld. Counsel for complainant company that it has been held in catena of cases by Hon'ble Apex Court as well as various 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;
(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 the ld. Addl. PP for the state and ld. Counsel for the complainant company that in order to bring home the guilt of the accused STATE Vs.DEVANAND @ DEVENDER & ANR. FIR No.27/18 Page no. 7 of 12 8 persons, prosecution has examined four witnesses and from their deposition, it is revealed out that inspection was carried out on 17.08.2015 at around 2.35 p.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 illegal tapping from LV mains with the help of illegal wire. It was further submitted by the ld. Counsel for the complainant company that PW2, who is the star witness of the present case, has duly proved the cable seized at site as Ex.P2 with the help of which accused persons were found indulged in direct theft of electricity. He has proved the documents prepared at site regarding inspection conducted at the premises in question on 17.08.2015 i.e. inspection report, load report and seizure memo as Ex.PW2/A (colly) to Ex.PW2/C. Lastly, it was submitted that prosecution has proved its case beyond reasonable doubt against the accused persons.
19. In the said circumstances, the onus has shifted upon the accused persons to prove their innocence or the defence as the presumption has arisen against them as mentioned in the third proviso to Section 135 of the Electricity Act.
20. The accused persons are not supposed to prove their defence 'beyond reasonable doubt' under the law and if any economic law shifts the burden on STATE Vs.DEVANAND @ DEVENDER & ANR. FIR No.27/18 Page no. 8 of 12 9 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'."
21. In view of the said law laid down by the Hon'ble Supreme Court, let me consider if accused persons have taken any defence.
22. During arguments, ld. Counsel for accused persons fairly conceded that both accused are residing in the premises in question moreover, it is not the case of the accused persons that they are not connected with the premises in question.
23. Both accused have submitted in notice under Section 251 Cr.P.C. put against them and in their statements under Section 313 Cr.P.C. that they have cleared the civil liability and simply denied the evidence on the ground that they had STATE Vs.DEVANAND @ DEVENDER & ANR. FIR No.27/18 Page no. 9 of 12 10 not committed any direct theft of electricity and false and fabricated case has been filed against them by the complainant company. The accused persons have further taken defence while crossexamining PW2 that the load was wrongly assessed and it was also exorbitant.
24. The said defences taken by the accused persons are merely bald submission as they have failed to lead any defence evidence or to produce any document to show that they were using electricity illegally and lawfully by paying due charges to the complainant company.
25. Thus, PW2 & PW4 having no axe to grind against the accused persons and they had no motive to falsely implicate the accused persons. Their respective depositions are also further corroborated by the documents placed on record and the videography further corroborates the inspection conducted at the site.
26. 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 persons in the present case despite opportunity given. In this regard, reliance can be placed upon judgment STATE Vs.DEVANAND @ DEVENDER & ANR. FIR No.27/18 Page no. 10 of 12 11 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 electricity as per meter. The appellant had only taken the stand that inspection was not valid inspection and the photographs were not proved properly".
27. During the pendency of case accused Devanand expired on 01.09.2019 and as such proceedings against him stands abated.
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28. From the above discussion, it is quite clear that accused Hira Lal miserably failed to show any probable defence in his favour coupled with the fact accused Hira Lal has 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 Hira Lal 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 on 13.09.2019.
Announced in the open (SANJEEV KUMAR SINGH)
court on this 11th September, 2019 ADDL. SESSIONS JUDGE
SPL. ELECTRICITY COURT
SAKET COURTS, NEW DELHI
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