Delhi District Court
State vs . on 24 March, 2018
IN THE COURT OF SH. DEVENDRA KUMAR SHARMA
ADDITIONAL SESSIONS JUDGE,
SPECIAL COURT (ELECTRICITY), EAST DISTT.,
KARKARDOOMA COURTS, DELHI
SC No : 994/16
FIR No: 165/09
P.S. BHAJAN PURA, DELHI
U/S 135 OF THE ELECTRICITY ACT, 2003
STATE
(THROUGH: M/S B.S.E.S. YAMUNA POWER LIMITED)
VS.
1. Nirbhey Kumar Sharma
S/o Sh. Kartar Singh,
2. Kartar Singh Sharma
Both R/o K4, Gali No.1,
Indira Gali, Gamra Road,
Ghonda, Delhi.
........... Accused persons.
DATE OF INSTITUTION OF THE CASE : 18.01.2010
DATE ON WHICH JUDGMENT WAS RESERVED : 14.03.2018
DATE OF PASSING OF JUDGMENT : 24.03.2018
JUDGMENT
A Criminal Complaint addressed to the Station House Officer Bhajan pura, Police Station, Delhi was filed by Sh. P.K. SC No : 994/16 STATE VS. NIRBHAY KUMAR SHARMA 1/39 Garg, the then Senior Manager/Authorized Officer of BSES YPL company (in short to be called as Complainant Company hereinafter) against accused persons namely Nirbhey Kumar Sharma and Kartar Singh Sharma, both resident of K4, Gali No.1, Indira Gali, Gamri Road, Ghonda, Delhi 110 053 Delhi for the offences punishable u/s 135/150 of the Electricity Act, 2003 (in short called as Act hereinafter) r/w Sec.379/34 of Indian Penal Code (in short IPC) for an offence of electricity theft against accused Nirbhey Kumar Sharma and Kartar Singh Sharma.
(A) FACTS :
2. The main allegation made in the said complaint were to the effect, inter alia, that on 19.01.2009 at about 6 : 50 p.m, an inspection was carried out by the joint O & M team of BSES YPL comprising of Sh. P.K. Garg (Sr. Manager), Sh. Y. K. Attri (Sr. Manager), Sh. R.P. Singh (Sr. Manager) and Sh. J. S. Negi (Engineer) at the premises i.e.K4, Gali No.1, Indira Gali, Gamri Road, Ghonda, Delhi 110 053 (in short called as inspected premises) where both the accused persons were found indulged in direct theft of electricity by using the electricity supply directly through illegal wires and same were connected directly to BSES LV mains and the entire load of the premises was running through illegal tapping done by them and same was being used SC No : 994/16 STATE VS. NIRBHAY KUMAR SHARMA 2/39 for industrial purposes and no meter was found at the site.
3. It has been further alleged in the Complaint that a total connected load of 203.603 KW/IX/DT (in short KW) was checked & assessed during the course of said inspection which was being illegally used by both the accused persons through artificial means not authorized by the complainant company. It has been further alleged that during the inspection, some of the raiding party members were beaten by the accused persons, due to which additional police force was called by the raiding team at the spot. It has been further alleged that due to hindrance created by accused persons, some part of the material evidence could not be removed from the site. It has been further alleged that the inspection report, load report & Meter Detail report were prepared at the spot. The photographs of the inspected premises showing irregularities were also taken and the occupant/user of the premises were found committing direct theft of electricity at the time of inspection by using electricity illegally from the system of the Complainant Company. Hence, the present Complaint dt.27.03.2009 was filed against the accused persons for initiating legal action as per law including the determination of civil liability against them as per the provision of Section 154(5) of the Act. Upon the said complaint, the present FIR No.165/09 for offences punishable U/Sec.135/150 of Act r/w SC No : 994/16 STATE VS. NIRBHAY KUMAR SHARMA 3/39 Sec.379 of Indian Penal Code (for short IPC) was registered on 30.04.2009 against accused both the accused persons.
(B) INVESTIGATION :
4. After registration of FIR, investigation was conducted.
During investigation, I.O recorded the statement of the witnesses, arrested the accused persons, seized the case property and after completion of investigation, present chargesheet U/Sec.173 of Criminal Procedure Code (in short Cr.P.C) was filed against both the accused persons. Accused were summoned.
(C) NOTICE :
5. After compliance of provision U/Sec.207 of Cr.P.C, on 05.12.2011, a notice of accusation as per the provisions of section 251 of Cr.P.C. was framed against both the accused by the Ld. Predecessor Court for the offence punishable u/s 135 of the Electricity Act to which they pleaded not guilty and claimed trial.
(D) PROSECUTION EVIDENCE :
6. In support of its case, the Prosecution has examined 7 witnesses in order to substantiate the allegation : (1) SI Krishan Dutt, Duty Officer as PW1, who got FIR of the present case registered and has tendered carbon copy of FIR during his examinationinchief as Ex.PW1/A. He also SC No : 994/16 STATE VS. NIRBHAY KUMAR SHARMA 4/39 got identified endorsement on the Complaint dt.27.03.2009 at PointA. (2) Sh. P. K. Garg, Senior Manager of BSES YPL as PW2 who was the Team Leader of the inspection team and has deposed on the lines of the Complaint and has also relied upon documents i.e Inspection Report as Ex.PW2/A, Load Report as Ex.PW2/B, Meter Detail Report as Ex.PW2/C, Seizure memo as Ex.PW2/D, Photographs as Ex.PW2/E (colly) and CD containing aforesaid photographs Ex.PW 2/F. He has identified both the accused before the Court and has also identified the case property as Ex.P1 (colly). He has proved his complaint dt.27.03.2009 as Ex.PW2/G. He has also proved the handing over memo of the case property to the I.O of the present case as Ex.PW2/H. (3) The next witness examined in this case by the prosecution is PW3 Ct. Krishan Pal, who has deposed that accused Nirbhay Kumar Sharma @ Rinku was arrested by the I.O/ASI Rameshwar Prasad in his presence and has proved the arrest memo prepared by said ASI as Ex.PW3/A. He has also proved personal search memo of accused bearing his signatures as Ex.PW3/B. (4) Sh Y. K. Attri, D.G.M (O&M Division), Paharganj, Delhi, who was one of the member of the raiding party, has been examined as PW4. He has deposed on the same lines of SC No : 994/16 STATE VS. NIRBHAY KUMAR SHARMA 5/39 PW2 and has relied upon the same documents which were relied upon by PW2 i.e. documents Ex.PW2/A to PW2/F. He has also correctly identified both the accused and the case property as Ex.P1 (Colly) before the Court. (5) The next witness examined in this case by the prosecution is PW5 Sh. R. P. Singh, who was the the member of the raiding party. He has deposed on the same lines of PW2 & 4 and has relied upon the same documents which were relied upon by PW2 i.e. documents Ex.PW2/A to PW2/F. He has correctly identified both the accused before the Court.
(6) Sh S. P. Singh, Additional Vice President of the Complainant Company is examined as PW6, who has seized the case property on the spot. He has deposed that upon a telephonic call received from the raiding party, he reached at the spot and seized the illegal material recovered from the site vide seizure memo Ex.PW2/D. He has correctly identified the case property before the Court as Ex.P1.
(7) The next witness examined on behalf of prosecution is PW7 SI Rameshwar, who got registered the FIR No.165/09 of the present case as Ex.PW1/A. He has proved his endorsement upon complainant Ex.PW2/G as Ex.PW7/A. He has also proved that he had arrested the accused SC No : 994/16 STATE VS. NIRBHAY KUMAR SHARMA 6/39 Nirbhey Sharma @ Rinku vide Ex.PW3/A. He also got conducted the personal search of the accused Nirbhey Sharma @ Rinku vide Ex.PW3/B. He has further deposed that disclosure statement of the accused was also recorded by him vide Ex.PW7/B. He has further deposed that other accused Kartar Singh was absconding since receiving of the complaint,hence on 21.05.2010 he had arrested the accused Kartar Singh vide Arrest memo Ex.PW7/C. He has also got conducted personal search of the accused vide memo Ex.PW7/D. He has deposed that during the investigation, he had recorded statement of the witnesses U/Sec.161 Cr.P.C in the present case and filed the challan against the accused persons before the court.
7. No other witness was produced or examined on behalf of the prosecution's side. Hence, on 22.09.2017 as per their oral submission, P.E was closed and matter was fixed for recording of Statement of the accused persons U/sec.281 r/w Sec.313 Cr.P.C.
(E) STATEMENT OF ACCUSED :
8. On 26.10.2017, statement of the both the accused U/sec.281 r/w Sec.313 Cr.P.C were recorded separately explaining all the incriminating evidence against them on record SC No : 994/16 STATE VS. NIRBHAY KUMAR SHARMA 7/39 which they denied as false & incorrect. Accused have asserted in their separate statements that they have been falsely implicated in the present case and have no concern with the inspected premises. It has been further asserted by them that they have settled a case with the complainant company with regard to the same premises involved vide Mark Ex.PW6/D1(colly)(55 pgs), though they have no concern with the inspected property in order to release Nirbhey Kumar Sharma, who was in J.C at that time. They have further asserted that they are innocent and have been falsely implicated in the present case by the BSES Officials who were residing in vicinity of their property as they had some altercation with them on the issue of parking their cars in the parking area operated by the accused Nirbhey Kumar Sharma in their property. Accused preferred to lead defence evidence.
9. However, despite giving several opportunities, they failed to lead any evidence on their behalf, hence, defence evidence was closed on 18.12.2017 and case was fixed for final arguments. However, during proceedings of the case, an application U/Sec.311 Cr.P.C was filed on behalf of the accused persons on 17.01.2018, which was allowed and case was fixed for defence evidence.
SC No : 994/16 STATE VS. NIRBHAY KUMAR SHARMA 8/39 (F) DEFENCE EVIDENCE :
10. Now turning to the defence evidence of the accused, Sh. Raj Kumar, Addl. Assistant Electrol Registration Officer has been examined as DW1. He has produced the document i.e. Voter list pertaining to gali No.1, KBlock, West Ghonda, Delhi as Ex.DW1/1 (running into 2 pages). During his crossexamination he has testified that as per the document Ex.DW1/1, total 18 persons are registered as Voter towards the address bearing No.K 4, Gali No.1, Indira Gali, Gamri Road, Ghonda, Delhi i.e. the inspected premises.
11. The next witness examined on behalf the accused in their defence is DW2 Sh. Suraj, Ahlmad from the Court of Ld. ASJ Sh. Lalit Kumar, NorthEast, Karkardooma, Delhi, who has produced the record of case file bearing FIR No.35/09 of PS. Bhajanpura, Delhi decided on 29.03.2017 and after comparing with the original judgment, proved photocopy of judgment passed in the said case as Ex.DW2/1. He has also filed copy of statement of witnesses recorded in aforesaid judgment vide Ex.DW2/2.
12. Thereafter, on 30.01.2018 defence evidence was closed as per the oral submission made by the accused persons and matter was fixed for final arguments.
SC No : 994/16 STATE VS. NIRBHAY KUMAR SHARMA 9/39 (G) FINAL ARGUMENTS & RELEVANT PROVISION OF LAW :
13. I have heard final arguments advanced on behalf of the parties. I have also gone through the record as well as contents of CD of photographs, written submissions filed on behalf of the parties and relevant provisions of case law.
14. The main submissions made during the course of final arguments on behalf of the prosecution/complainant were inter alia, to the effect that the accused herein were found indulged in direct theft of electricity by way of tapping the illegal wires to the BSES LV Mains Line of the Complainant Company without any authority in this regard; that there was no meter found installed at the subject premises at the time of inspection; that accused herein had not taken any permission from the complainant company for using electricity in such a way; that due to illegal theft of electricity committed by the accused, the complainant company suffered huge monetary loss; that such illegally extracted electricity was used by the accused for industrial purposes; that all the relevant papers like inspection report, load report, meter detail report, seizure memo etc. were prepared at the spot but persons present there refused to sign the same; that due to hindrance created on behalf of the accused persons additional police force was called to conclude inspection SC No : 994/16 STATE VS. NIRBHAY KUMAR SHARMA 10/39 proceedings; that all the material witnesses have been examined in this case by the prosecution and that they have duly proved the case against the accused persons herein by way of cogent evidence, both oral as well as documentary; that ultimately, an theft bill to the extent of Rs.1,55,06,704/ was sent to the accused persons but they deliberately failed to pay any amount out of it to the complainant company; that all the necessary formalities like conducting of inspection, preparation of inspection report, load report, meter detail report, seizure memo etc. were done by the team of the complainant company at the spot as per rules; that copies of all the documents prepared at the spot were tendered to the representative of accused but they refused to accept and sign the same deliberately for the reasons best known to them; that accused persons are liable to be convicted as per law; that accused persons were also liable for civil liability as per law. In the end, a prayer was made for convicting the accused persons namely Nirbhey Kumar Sharma and Kartar Singh Sharma strictly as per law for the offence punishable U/Sec.135 of the Electricity Act, 2003 as well as for making them liable for civil liability as per provisions of Section 154(5) of the Act.
15. On the other hand, the main submissions made by Ld. defence Counsel during the course of oral final SC No : 994/16 STATE VS. NIRBHAY KUMAR SHARMA 11/39 arguments/written submissions on behalf of the accused Kartar Singh Sharma, were, interalia to the effect that there is delay in filing the complaint for registration of the FIR in the present case, which is against mandatory provision of the Electricity Act, 2003; that no inspection was carried out at the subject premises as alleged in the presence of accused; that no documents like inspection report, load report, meter detail report, seizure memo etc. were prepared in his presence; that photographs of the subject premises were not taken in his presence; that accused has been falsely implicated in this case by the officials of the Complainant Company; that a criminal case bearing FIR No.35/09 filed by the complainant company against the accused herein was decided in favour of the accused persons and against the complainant Company vide judgment dt.29.03.2017 passed by Ld. Addl. Sessions Judge (NorthEast), Karkardooma, Delhi (in short as judgment of Ld. ASJ hereinafter); that all the witnesses of the prosecution/complainant company have deposed falsely in this case; that no independent witnesses of the locality were joined by the inspecting party during the alleged inspection conducted in this case; that accused is not liable to be convicted in this case for any offence or that accused is not liable for any civil liability in this case. In the end, a prayer was made for acquittal of the accused for the offence U/Sec.135 of the Act as well as for discharging him from civil liability as per provision of SC No : 994/16 STATE VS. NIRBHAY KUMAR SHARMA 12/39 Section 154(5) of the Act. Ld. Counsel for the accused Nirbhey Kumar Sharma has filed and relied upon the same submissions as relied upon by the coaccused Kartar Singh Sharma and similar arguments were advanced.
16. Before going through the facts of the present case, it will be relevant to reproduce the relevant provisions of Electricity Act for ready reference :
Section 135 Theft of electricity - (1) Whoever, dishonestly, (a) taps, makes or causes to be made any connection with overhead, underground or under water lines or cables, or service wires, or service facilities of a licensee; or
(b) tampers a meter, installs or uses a tampered meter, current reversing transformer, loop connection or any other device or method which interferes with accurate or proper registration, calibration or metering of electric current or otherwise results in a manner whereby electricity is stolen or wasted; or
(c) damages or destroys an electric meter, apparatus, equipment, or wire or causes or allows any of them to be so damaged or destroyed as to interfere with the proper or accurate metering of electricity,
(d)uses electricity through a tampered meter;or
(e) uses electricity for the purpose other than for which the usage of electricity was authorized, so as to abstract or consume or use electricity shall be punishable SC No : 994/16 STATE VS. NIRBHAY KUMAR SHARMA 13/39 with imprisonment for a term which may extend to three years or with fine or with both;
Provided that in a case where the load abstracted, consumed, or used or attempted abstraction or attempted consumption or attempted us :
(i) does not exceed 10 kilowatt, the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent conviction the fine imposed shall not be less than six times the financial gain on account of such theft of electricity;
(ii) exceeds 10 kilowatt, the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent conviction, the sentence shall be imprisonment for a term not less than six months, but which may extend to five years and with fine not less than six times the financial gain on account of such theft of electricity.
Provided further that in the event of second and subsequent conviction of a person where the load abstracted, consumed, or used or attempted abstraction or attempted consumption or attempted use exceeds 10 kilowatt, such person shall also be debarred from getting any supply of electricity for a period which shall not be less than three months but may extend to two years and shall also be debarred from getting supply of electricity for that period from any SC No : 994/16 STATE VS. NIRBHAY KUMAR SHARMA 14/39 other source or generating station........................................................
17. Thus, from the aforesaid provision of law, it is clear that the Complainant Company is required to prove as under :
1. That there was theft/abstraction of electricity illegally by tempering the meter or by illegally tapping from a source not validly authorised to the accused.
2. That it was being done by the accused/consumer in the inspected premises.
18. The law is well settled that in case the aforesaid ingredients are proved, there is presumption under Proviso III of Section 135(1) of the Electricity Act, 2003 which is reproduced for ready reference : "Provided also that if it is proved that any artificial means or means not authorised by the Board or licensee or supplier, as the case may be, exist for the abstraction, consumption or use of electricity by the consumer, it shall be presumed, until the contrary is proved, that any abstraction, consumption or use of electricity has been dishonestly caused by such consumer".
(H) FINDINGS :
19. In the present case, both the accused have been SC No : 994/16 STATE VS. NIRBHAY KUMAR SHARMA 15/39 charged with the allegation that they were involved in direct theft of electricity on 19.01.2009 at about 6 : 50 p.m. when a raid was conducted at premises no. K4, Gali No.1, Indira Gali, Gamri Road, Ghonda, Delhi 110 053. There is further allegation that the stolen electricity was being used for industrial purposes and connected load was found to be 203.603KW. However, both the accused Nirbhey Kumar Sharma and Kartar Singh Sharma have denied to have any concern with the inspected premises.
20. The registration of the FIR Ex.PW1/A has been proved in the present case by witness PW1 and registration of FIR has not been disputed on behalf of the accused persons. They have also not denied their arrest which have been otherwise proved by PW3 and PW7.
21. Witness PW2 P.K. Garg has deposed that on 19.01.2009 he alongwith PW4 Y. K. Attri, PW5 Sh. R. P. Singh and one Sh. Jeet Singh raided the inspected premises i.e. K4, Gali No.1, Indira Gali, Gamri Road, Ghonda, Delhi 53. He has further deposed that after the intervention of the additional police force, which was called at the spot by them, they inspected the premises where there was direct theft of electricity through illegal wires directly connected through BSES YPL LV mains. He has further deposed that connected load was found to be 203.603 SC No : 994/16 STATE VS. NIRBHAY KUMAR SHARMA 16/39 KW and there was no meter found at the site. He has further deposed that factory was being run into two shifts. He has proved that the Inspection Report Ex.PW2/A, Load Report Ex.PW2/B, Meter Detail Report Ex.PW2/C were prepared at the spot and was tendered to the accused Nirbhey Kumar Sharma, who refused to sign the same. He has further deposed that technical diagram was also made to show the exact position of the direct theft. The proceedings were photographed vide photographs Ex.PW2/E (Colly) and CD of the photographs is Ex.PW2/F. He has further proved that PW6 Sh. S. P Singh was called at the spot to seize the case property vide seizure memo Ex.PW2/D. This witness has correctly identified the accused Nirbhey @ Rinku and Kartar Singh Sharma in the Court. He has also correctly identified the case property i.e. one PVC aluminum single core (2 nos), 20mm sq about 12.1 mtrs (approx) in length in red colour, PVC aluminum single core (10 pieces), 25 mm sq approximately 23.2 mtrs in length in black colour; One PVC aluminum single core cable, 25mm sq aproximately and 1.80 mtrs in length approx in yellow colour, one PVC aluminum single core 25mm sq approx 2.10 mm in length of red colour, 2 PVC single aluminum cable 7 x 18 mm sq, 5.8 mtrs in length approximately of black colour and one PVC aluminum single core cable 8mm sq, 1.8 mtrs in length of black colour and all the case property i.e illegal wires were exhibited collectively as Ex.P1. In SC No : 994/16 STATE VS. NIRBHAY KUMAR SHARMA 17/39 all 17 pieces of wires were being used. He has also proved the Complaint lodged in the police station dt.27.03.2009 Ex.PW2/G against both the accused persons. He has also proved that the case property was handed over to the I.O/ASI Rameshwar Prasad PW7 vide handling over memo Ex.PW2/H.
22. Witness PW4 Sh. Y. K. Attri has corroborated the testimony of PW2 in all material particulars. Witness PW5 Sh. R. P. Singh has also corroborated the testimony of PW2 and PW4. Witness PW6 Sh S. P. Singh has proved that he has seized the case property Ex.P1 (Colly).
23. The bone of contention raised on behalf of both the accused is that they have no concern with the inspected premises. However, it has been proved on record in the testimony of PW6 Sh. S. P. Singh that both the accused have settled another criminal complaint filed against them in respect of the same premises. Certified copies of the documents has been marked as Mark PW6/D1. The perusal of the certified copies reveals that the said criminal complaint bearing No.1207 of 2006 was filed against both the accused persons contesting the present matter alongwith one other accused Smt. Indu Sharma regarding an inspection dt.26.04.2006 in respect of the premises bearing No.K 4, Gali No.1, Indira Gali, Main Gamri Road, Ghonda, Delhi i.e. SC No : 994/16 STATE VS. NIRBHAY KUMAR SHARMA 18/39 the inspected premises of the present case and said matter was settled by both the contesting accused. Perusal of the certified copies of said record also reveals that there have been no dispute raised by the accused that premises bearing K4, Gali No.1, Indira Gali, Main Gamri Road, Ghonda, Delhi does not belongs to them. Instead it has come on record in the said proceedings that the accused persons have obtained the 'No Dues Certificate' after compounding the said matter which was placed on record. This fact has not been disputed by any of the accused in their statement recorded U/Sec. 281 r/w Sec.313 Cr.P.C except stating that the said compounding was under compulsion because of the arrest of accused Rinku Sharma in that case. Here it is to be noted that a person would never compound a matter in respect to the electricity theft, if the premises does not belongs to him for a huge sum of Rs.7 lacs. Thus, this defence appears to be an after thought.
24. Further, it is clear from the record that there was electricity meter installed at the said premises which is also the inspected premises in the present case, in the name of accused Nirbhey Kumar Sharma bearing K No.125053250598. Even in the crossexamination of PW4 it has been deposed by him that there was a meter connection in the name of accused Nirbhey Kumar Sharma and this fact has not been specifically denied by SC No : 994/16 STATE VS. NIRBHAY KUMAR SHARMA 19/39 the accused Nirbhey Kumar Sharma. He has simply stated that he does not have the knowledge about the same.
25. Thus, from the above testimonies of the witnesses and since nothing has come out in the crossexamination of any of the witnesses to disbelieve their testimony coupled with the certified copy of documents of the previous complaint No.1207/06 between the parties, it has been proved on record beyond doubt that the inspected premises was belonging/occupied by both the accused. Thus, their plea that there is no ownership documents placed on record is bound to fail taking notice of the fact that despite clear directions of the Hon'ble High Court to the accused Kartar Singh Sharma to file affidavit that the inspected premises does not belongs to the accused persons, he has failed to file any such affidavit or to lead any rebuttal evidence to the extent to prove their contention that they have no concern with the inspected premises. Moreover, the Act does not provide that person using illegal electricity must be owner or tenant. In the present case, both the accused have been charged that they were user of illegal electricity. Thus, their defence that they were not the owner of the inspected premises, has no meaning.
26. It has been further argued on behalf of the accused Kartar Singh Sharma that PW2 has not named the accused SC No : 994/16 STATE VS. NIRBHAY KUMAR SHARMA 20/39 Kartar Singh Sharma nor even has stated that the accused Kartar Singh Sharma was present at the spot and has relied in support of contention upon the statements of witness PW2 recorded in criminal proceedings in FIR No.35/09 in SC No.4456/15 Ex.DW 2/2(colly). He has also relied upon the statement of Sh. Y. K. Attri recorded in the said case.
27. At the outset, it is held that the statement recorded of the witnesses in the said proceedings cannot be read in evidence in the present matter as both matter are different. Furthermore in the crossexamination of the witnesses in the present matter, none of the statement recorded in the said FIR case was put to any of the witness for their clarification/contradiction at the time of their crossexamination. Thus, in absence of not following the procedure for contradicting the previous statement made by the witnesses in other proceedings, it cannot be read into evidence in the present matter.
28. Even the judgment Ex.DW2/1 of the said Criminal case cannot be treated to be a binding precedent in view of the provision U/Sec. 43 of the Indian Evidence Act, 1872 as the existence of said judgment is not in question in the present matter. Thus, that judgment is irrelevant for the purposes of the present case. Moreover, the findings recorded in the said SC No : 994/16 STATE VS. NIRBHAY KUMAR SHARMA 21/39 judgment is in relation to obstruction of duty being discharged by the government officials and present case is a case of electricity theft case. Thus, the subject matter for decision in both the cases are altogether different.
29. Even the fact that in the said case, Mr. P.K. Garg has admitted that he did not make police complaint in respect to the quarrel which took place at the spot has nothing to do with present case.
30. Any how for contradicting the previous statement of the witness, law is very clear. A witness can be contradicted with the previous statement in writing in view of Section 145 of the Indian Evidence Act, only when if his attention has been drawn to his previous statement. However, in the present case, no such procedure was followed and therefore, any contradicition in previous statement and statement made before this Court by witness PW2 and PW4 can not be read into evidence in the present matter. Thus, the contradictions pointed out during the arguments in the statement of these two witnesses are of no relevance in the present matter.
31. The next argument advanced on behalf of the accused persons are that there are contraction in the testimony of PW2, SC No : 994/16 STATE VS. NIRBHAY KUMAR SHARMA 22/39 PW4 and PW6 regarding the time of their arrival at the spot, entry into the inspected premises, number of seized articles i.e. case property and manner of removal of the illegal wires. The careful perusal of the chiefexamination as well as cross examination of the witnesses PW2, PW4 and PW6 make it clear that the witness PW6 reached at the spot later on to seize the articles i.e. case property. In the crossexamination witness PW5 have clearly stated that total 17 wires of different types were seized. This testimony have been corroborated by PW4 in his crossexamination. Even the case property was reopened in the testimony of PW6 and 17 different wires were taken out. As per seizure memo Ex.PW2/D, which has been duly proved by PW6, 7 set of illegal wires consisting of total 17 pieces of wires were seized. Thus, there is no contradiction in their testimonies.
32. So far as manner of entering into premises, its goes without saying that it is inconsequential whether the witnesses entered into in the inspected premises through shutter or gate as even shutter can be considered a gate and visaversa.
33. So far as number of raiding team is concerned, it has been proved on record that witness PW2, PW4, PW5 and one Lineman Jeet Singh were the members of the raiding team. The argument that witness PW6 has testified that the illegal wires SC No : 994/16 STATE VS. NIRBHAY KUMAR SHARMA 23/39 were removed by one Lineman namely Loma and therefore, he contradicted his own statement made in examinationinchief. However, from perusal of the examination in chief, it is clear that he has only stated in his examinationinchief that on his directions, the wires were removed. Thus, there is no contradiction in his statement. Moreover, the removal of wires by calling another official cannot be said to have caused any prejudice to the proceedings rendering the proceedings as illegal. Considering the fact that in the present case, there were number of cables removed which were being used for illegal tapping, taking of assistance by calling the another official of the complainant company appears to be desirable.
34. The argument advanced that in the entire evidence, role of the accused Kartar Singh Sharma had not been specified appears to be without any merits as the witnesses PW4 and PW5 have clearly stated in their examinationinchief that they met both the accused at the spot, where the factory was running and they have correctly identified both the accused persons before the Court. Even the witness PW2 though in examination inchief has stated that he met accused Rinku @ Nirbhey Kumar at the spot but he has also identified both the accused persons correctly before the Court. In the entire crossexamination of PW2 no suggestion has been given that he did not meet both the SC No : 994/16 STATE VS. NIRBHAY KUMAR SHARMA 24/39 accused at the spot.
35. The next argument advanced on behalf of the accused persons is that the photographs Ex.PW2/E (colly) and CD of the photographs Ex.PW2/F cannot be read into evidence for want of any supporting Certificate U/Sec. 65(B) of the Indian Evidence Act. This argument has no force. There was no objection raised on behalf of the accused persons when the documents i.e. photographs Ex.PW2/E and CD containing photographs PW2/F were exhibited regarding the mode of proof that they can not be read into evidence for want of filing of Certificate U/Sec. 65(B) of Indian Evidence Act. In this regard, reliance may be placed upon judgment reported in 2017(3) RCR(Criminal) 786 in case titled as "Sonu Vs. State of Haryana". The relevant para is reproduced for ready reference as under : "26 Ordinarily an objection to the admissibility of evidence should be taken when it is tendered and not subsequently.
The objections as to admissibility of documents in evidence may be classified into two classes; (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or SC No : 994/16 STATE VS. NIRBHAY KUMAR SHARMA 25/39 insufficient. In the first case, merely because a document has been marked as "an exhibit', an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken before the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The later proposition is a Rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons; firstly, it enables the Court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the Court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the Court for permitting a regular mode or method of proof and thereby SC No : 994/16 STATE VS. NIRBHAY KUMAR SHARMA 26/39 removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the later case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insistng on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in superior Court".
It would be relevant to refer to another case decided by this Court in P.C. Purshothama Reddiar Vs. S. Perumal, MANU/SC/0454/1971:(1972) 1 SCC 9. The earlier cases referred to are civil cases while the case pertains to police reports being admitted in evidence without objection during the trial. The Court did not permit such an objection to be taken at the appellant stage by holding that :
"Before leaving this case it is necessary to refer to one of the contentions taken by Mr. Ramamurthi, learned Counsel for the Respondent. He contended that the police reports referred to earlier are inadmissible in evidence as the HeadConstables who covered those meetings have not been examined in the case. Those reports were marked without any objection. Hence, it is not open to the Respondent now to object to their admissibility".
SC No : 994/16 STATE VS. NIRBHAY KUMAR SHARMA 27/39
36. The other arguments that there is no explanation for delay in filing the complaint to the police is of no consequence. Even it is not the case of the accused persons that delay in filing the complaint or registration of FIR has caused any prejudice to their case. Moreover, the witness PW2 has explained that delay took place as certain procedure is to be followed before making Complaint. This explanation is itself sufficient.
37. It was also argued that no public persons were joined during the raid or investigation. There is no law which mandates that in all the cases, public persons must join the proceedings. Moreover, considering the facts of the case, it cannot be said that there was any public persons present at the time of inspection. Thus, nonjoining of public persons in no way (marred) the interest of any of the accused in any manner.
38. The witnesses PW2, PW4, PW5 and PW6 in their testimonies have clearly proved the inspection on 19.01.2009 at the inspected premises bearing No. K4, Gali No.1, Indira Gali, Gamri Road, Ghonda, Delhi 53 by proving the inspection report Ex.PW2/A, Load report Ex.PW2/B, Meter Detail Report Ex.PW 2/C./ They have also proved the seizure memo of the case property vide Ex.PW2/D. The proceedings of the Inspection SC No : 994/16 STATE VS. NIRBHAY KUMAR SHARMA 28/39 were photographed and these photographed have been proved as Ex.P2/E(colly) and their CD as Ex.PW2/F. They have correctly identified the case property as Ex.P1 (colly) as well as the accused persons. They have also proved the mode of electricity theft by illegal tapping by the accused persons for running the factory of Anodizing Plant i.e. for industrial purposes in two shifts. Moreover, in the present case, inspection was conducted at 6 : 50p.m and factory was found running. . They have proved that at the inspected premises, there was no meter installed at the time of inspection.
39. Nothing has come out in the crossexamination of any of the witnesses or there is nothing on record to disbelieve the testimonies of the witnesses as their testimony remained unrebutted and unshakened despite their lengthly cross examination. Instead in their crossexamination, witnesses have clearly stated that there were Hand Moulding machines, dryer, immersion rods, buffing Adda etc., which were found in running condition and even have given the minor details of the machines, which were found running and the manner of electricity theft by illegal tapping for a connected load of 203.603KW for industrial purposes.
SC No : 994/16 STATE VS. NIRBHAY KUMAR SHARMA 29/39
40. Thus, from the above testimonies of PWs coupled with the documentary evidence led on behalf of the prosecution, it is proved that there was electricity theft by direct tapping from BSES LTMP Line through illegal wires for illegal supply by accused persons.
41. Thus, the ProvisoIII U/Sec.135 of Electricity Act, 2003 comes into operation and now it is for the accused to prove contrary that they were not involved in electricity theft in any manner or that they were not the consumer of the electricity.
42. The law on the point of rebuttal is well settled. Rebuttal of presumption is to be established from a "prudent men's test"
making the court to belief the existence of defence of the accused. In other words, the accused is not supposed to prove his defence beyond reasonable doubt under the law and if any law shift the burden on the accused to rebut the presumption, the extent of onus to be discharged by him, which has been answered by the Hon'ble Supreme Court in case titled as "Hiten P. Dalal Vs. Bratindranath Banjerjee" cited as 2001(6) SCC 16 in Para 22/29 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 SC No : 994/16 STATE VS. NIRBHAY KUMAR SHARMA 30/39 the defence that the Court must either believe the defence to exist or consider its existence to be reasonably probable, the standard or reason ability being that of the "prudent man".
43. In their defence they have summoned the record of voter ICard pertaining to premises No.1 KBlock, West Ghonda, Delhi, which was proved as Ex.DW1/1. The perusal of the Voter list reveals that total 18 persons are registered as voters and that they are voters in Gali no.1, KBlock West Ghonda, Delhi with the House No.K4. However, it is to be noted here that none of the said persons were summoned as a witness to clarify that except those persons no other person were in occupation of the any portion of House No.K4. From the record itself it is clear that it is big property.
44. Moreover, in the present case, it is not the case of the prosecution that any of the accused was residing there. Instead it is case of the prosecution that the inspected premises was being used for the purposes of running the factory. Even the accused persons in their statement recorded U/Sec.281 r/w Sec.313 Cr.PC have themselves stated that it is a matter of record that they compounded the previous complaint. In the said complaint, the address of the accused persons is shown as K4. Thus, it SC No : 994/16 STATE VS. NIRBHAY KUMAR SHARMA 31/39 appears that now as an after thought this defence has been taken that the accused persons have no concern with the inspected premises. Here it is to be noted that the inspected premises is situated in a area which was primarily the village area and it is commonly known fact that in such area the house number is generally based on Khasra Number. Thus, their plea and defence that the said property belongs to other persons are bound to fail.
45. So far as the judgment and proceedings of the case FIR No.35/09 P.S. Bhajanpura is concerned, the witness DW2 was examined to prove the same. However, as already discussed those proceedings have no relevancy with the proceedings of the present case. Though in their statement recorded U/Sec.281 r/w Sec.313 of Cr.P.C the accused persons have taken specific defence that they have been falsely implicated because of altercation regarding parking with BSES Officials as accused Nirbhey Kumar Sharma was running a parking. However, they failed to prove their defence as they even did not lead any such evidence.
46. It is to be noted that the accused Nirbhey Kumar Sharma and Kartar Singh Sharma have not placed any bill regarding the payment of regular bill of the meter installed in the inspected premises. Had the electricity been going to the accused SC No : 994/16 STATE VS. NIRBHAY KUMAR SHARMA 32/39 premises through meter, the easiest way to prove it was by producing the electricity bills paid by the accused to the complainant company. The very fact that the accused 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 accused directly from BSES LV Mains by committing theft. Paid electricity bills would have been the best evidence to show that the accused were using electricity through meter. Under Section 106 of the Evidence Act, the onus was on the accused to produce and prove such bills paid for the use of electricity. However, this is not even the case of the accused that they had been using electricity through meter and had been paying bills of electricity as per meter.
47. The accused had taken the stand that the inspection was not valid inspection. So far as the validity of the inspection is concerned, complainant has a right to prove theft of electricity done by the accused irrespective of the status of inspection. The invalid inspection does not make theft of electricity as a non crime. Theft of electricity remains a crime irrespective of fact that inspection is valid or not. The Hon'ble Supreme Court in "State and Ors Vs. N.M.T Joy Immaculate 2004(5) SCC 729 has observed that admissibility or otherwise of a piece of evidence has to be judged having regard to the provisions of the Evidence SC No : 994/16 STATE VS. NIRBHAY KUMAR SHARMA 33/39 Act. Neither Evidence Act nor Cr.P.C or any other law excludes relevant evidence on the ground that it was obtained under an illegal search or seizure. Therefore, even if the inspection was not conducted by an Officer as designated under the notification, the members of the inspection team who had visited the site and found the electricity being stolen are competent witnesses to depose in the Court about the theft of electricity and the manner in which electricity was being stolen.
48. Further, it has to be kept in the mind that the conclusion of theft after trial can not be made merely on the basis of an inspection report. If the law had been that the inspection report in itself would have been conclusive evidence of the theft of electricity and no further evidence would have been required, it would have been possible for the counsel for the accused to argue that since the inspection report was the conclusive evidence of theft, the inspection report must strictly comply with the rules. Inspection of the premises is merely a mean to detect the theft of electricity and to find the means by which the electricity was being stolen. Inspection Report is merely a piece of evidence and inspection report is not considered as a conclusive proof of the theft of electricity. The theft of electricity has to be proved by the complainant in the Court by cogent evidence therefore, the validity of the inspection report cannot be SC No : 994/16 STATE VS. NIRBHAY KUMAR SHARMA 34/39 attached too much of importance.
49. Similarly, even non production of the case property i.e. wires through which electricity was being stolen or nonfiling of photographs are not a serious infirmity in any electricity theft case since the case can be proved by oral testimony supported by photographs showing the theft of electricity. Instead, in the present case, the photographs were put in crossexamination of the witnesses to substantiate the defence. In this regard, reliance may be placed upon the judgment reported in case titled as "Mukesh Rastogi Vs. NDPL" decided on 23.10.2007 by the Hon'ble High court of Delhi in Criminal Appeal No.531/2007.
50. It is to be noted that even living in the premises in question or to be present at the time of inspection with regard to theft of electricity is not necessary because of the very nature of the electricity as a substance. The presence of the accused at the spot at the time of commission of offence may be necessary like the offence of pickpocketing but for the theft of electricity, fixation or use of certain devices may be sufficient to continue the theft of electricity without the accused being personally present there and electricity as a stolen material is consumed simultaneously. Electricity is not a tangible object and therefore, even recovery of the case property may not be necessary like SC No : 994/16 STATE VS. NIRBHAY KUMAR SHARMA 35/39 other cases where the case property like jewellery, cash, motor vehicle etc. may be recovered. Thus, even the defence like absence of the accused and non recovery of case property do not appeal in case of theft of electricity.
51. In view of the aforesaid case law laid down by the Hon'ble Supreme court, it can be safely held that accused has failed to rebutt the presumption arising against them under the ProvisoIII of the Electricity Act that they were involved in the direct theft of electricity on the date of inspection at the inspected premises when it has been proved on record that accused were very much present at the inspected premises and were doing the industrial activity without having any valid licence/source of electricity to consume it. Thus, in the light of aforesaid discussion, the defence raised on behalf of the accused appears to be without any substance.
52. It is well settled principle of law that the onus to prove the false implication is on the person/accused who pleads false implication. In the present case, no cogent evidence has been brought on record by the accused persons that they were falsely implicated. The accused have taken a vague plea that they have been falsely implicated in the present case. During the evidence, the accused were duly identified by the witnesses.
SC No : 994/16 STATE VS. NIRBHAY KUMAR SHARMA 36/39
53. There is nothing on record to suggest that there was any enmity between accused and officials of Complainant Company or he has been falsely implicated in the present case. Moreover, it has been categorically held in judgment titled as "Punjab State Electricity Board & Anr. Vs. Ashwani Kumar" in Civil Appeal No.3505/07 alongwith Civil Appeal No.,3506/07, decided on 08.07.2010, reported in 2010(7) SCC 569, which is reproduced for ready reference : "The report prepared by the Officer of the Electricity Board is an act done in discharge of their duties and could not be straight away reflected or disbelieve unless and until there was definite and cogent material on record to arrive at such a finding. It has been further observed in the said judgement that the inspection report is a document prepared in exercise of its official duty by the officers of the corporation. Once an act is done in accordance with law, the presumption is in favour of such act or document and not against the same. Thus, there was specific onus upon the consumer to rebut by leading proper and cogent evidence that the report prepared by the officers was not correct"
(I) CONCLUSION :
54. From the aforesaid discussion, it is clearly proved beyond any doubt by the prosecution from the cogent evidence SC No : 994/16 STATE VS. NIRBHAY KUMAR SHARMA 37/39 that an inspection was carried out on 19.01.2009 at about 6 : 50 p.m. at the premises No.K4, Gali No.1, Indira Gali, Gamri Road, Ghonda, Delhi 110 053 and that the said premises belongs to the accused Nirbhey Kumar Sharma and Kartar Singh Sharma and there was direct theft of electricity as no meter was found installed at the inspected premises and there was direct tapping from the BSES LV Mains. Further the said direct supply was being used for industrial purposes.
55. In the light of the aforesaid discussion, it has been proved on record that it was the accused persons who were directly involved in the electricity theft and this fact has been proved beyond any reasonable doubt from the testimony of PWs coupled with inspection report, meter detail report, load report and photographs coupled with documents of compounding in CC No.1207/2006 and the inspected premises was being used to run the industry by the accused without having any valid source of electricity and connected load was found to be 203.603 KW. Accordingly, both the accused persons Nirbhey Kumar Sharma and Kartar Singh Sharma are held guilty and convicted for the offence punishable u/s 135 of the Electricity Act and are also held liable for the civil liabilities for using electricity illegally for industrial purpose under section 154(5) of the Electricity Act.
Main file be consigned to record room.
SC No : 994/16 STATE VS. NIRBHAY KUMAR SHARMA 38/39 Ahlmad to prepare the misc. file for the purposes of arguments on sentence.
Be put up for supply of copy of judgment as prayed on behalf of the accused on 27.03.2018.
ANNOUNCED IN THE OPEN COURT TODAY ON 24th March, 2018 (DEVENDRA KUMAR SHARMA) ASJ/ SPECIAL ELECTRICITY COURT EAST DISTT./ KKD COURTS/DELHI (Total 39 no. of pages) (One Spare copy is attached) Digitally signed DEVENDRA by DEVENDRA KUMAR KUMAR SHARMA Date: 2018.03.27 SHARMA 10:55:26 +0530 SC No : 994/16 STATE VS. NIRBHAY KUMAR SHARMA 39/39