Delhi District Court
Brpl vs . Rukhshana & Anr Cis No.641871/16 Page ... on 20 November, 2017
1
IN THE COURT OF MS. NEELAM SINGH, ADDL. SESSIONS JUDGE,
THE SPECIAL COURT UNDER THE ELECTRICITY ACT 2003,
SAKET COURTS, NEW DELHI
Complaint Case No. : 598/14
Police Station : Malviya Nagar, New Delhi.
U/s : 135 of Electricity Act, 2003
CIS No. : 641871/16
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,
Near Andrews Ganj Market,
New Delhi110049.
Acting through Sh. Ashutosh Kumar,
(Authorised Representative) ..Complainant
Versus
1.Rukhshana (User) House No. 63, Second Floor, Kalu Sarai, Begampur, Malviya Nagar, New Delhi110017.
2. Jaferyddin (RC/Owner) House No. 63, Second Floor, Kalu Sarai, Begampur, Malviya Nagar, New Delhi110017. ...Accused Complaint instituted on : 07.08.2014 Judgment reserved on : 20.11.2017 Judgment pronounced on : 20.11.2017 BRPL VS. RUKHSHANA & ANR CIS NO.641871/16 Page no. 1 of 15 2 JUDGMENT
1. Complaint u/sec. 151 of the Electricity Act, 2003 (hereinafter called as 'the Act') has been filed by the complainant company against accused Rukhshana (user) for the offence punishable u/s. 135 of the Act and against accused Jaffryddin @ Jafruddin for the offence punishable u/s. 135 r/w Section 150 of the Act. Determination of civil liability has also been prayed for.
2. As per contents of the said complaint, the case of the complainant in brief is that on 25.03.2014 at about 3.30 p.m., the officers of the complainant company namely, Shri Mani Bhushan SarojSenior Manager, Sh. Jamal AkhtarDET and Sh. Sanjay Kumar Technician inspected the premises i.e House No. 63, Second Floor, Kalu Sarai, Begampur, Malviya Nagar, New Delhi110017, which was being used and occupied by the accused namely Rukhshana (User) and Jaffryddin (RC/Owner), where the theft of electricity was being committed. It is further mentioned in the complaint that one single phase electronic meter bearing no. 13352577 with current reading 5125 KWH, MDI 2.27 KW was found installed at site. However, accused were found BRPL VS. RUKHSHANA & ANR CIS NO.641871/16 Page no. 2 of 15 3 involved in direct theft of electricity by directly connecting to meter input with the help of illegal wire. It is further mentioned in the complaint that connected load of 5.355 KW for domestic purpose was taken. It is further mentioned in the said complaint that one number of black colour copper wire size 7/20 SWG having length of 1 meter approx, one number of red and black colour copper wire size 7/20 SWG having length of 2 meter approx and one number of single phase electronic meter bearing no. 13352577 with current reading 5125 Kwh, were seized by the officials of complainant company and that the videography of the inspection proceedings was got conducted and the documents i.e. inspection report, load report and seizure memo were also prepared at site and thus, accused were causing wrongful loss to the complainant and wrongful gain to themselves and was thus acting dishonestly.
3. It is further mentioned in the complaint that it was a case of direct theft of electricity and theft bill, as per the DERC regulations and tariff order was raised by the complainant for Rs.1,05,314/ with due date as 14.04.2014 and was served upon the accused but they failed to pay the said theft bill hence the present complaint.
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4. The case was fixed for presummoning evidence and accused were summoned to face the said allegations by my Ld. Predecessor vide his order dated 17.11.2014. Both accused persons appeared and were granted bail.
5. Notice U/sec. 251 Cr.P.C. for commission of offence punishable u/s. 135 of the Electricity Act, 2003 against the accused Rukhshana and for the offence punishable u/s 135 r/w Section 150 of the Electricity Act, 2003 against the accused Jaferyddin @ Jafruddin framed separately. Both accused persons did not plead guilty and claimed trial on the ground that they were not committing any theft of electricity and that false and fabricated case was filed against them by the complainant company.
6. In order to prove the case of the complainant, five witnesses were produced, which have been discussed below.
7. Incriminating evidence was put to the accused and their statement under Section 313 Cr.P.C. was recorded separately. Both accused persons namely Ruhkshana and Jaferyddin @ Jafruddin denied evidence as false BRPL VS. RUKHSHANA & ANR CIS NO.641871/16 Page no. 4 of 15 5 and submitted that they had a valid connection at the time of inspection and had been regularly paying the consumption charges as raised by company. Accused further opted to lead defence evidence and examined one witness which has been discussed below.
8. PW1 Shri Mani Bhushan Saroj Senior Manager in the complainant company deposed that on 25.03.2014 at about 3.30 p.m., he alongwith DET Jamal Akhtar, LinemanSanjay and Photographer Vijay inspected the premises bearing no. House no. 63, 2 nd floor, Kalu Sarai, Begampur, Malviya Nagar, New Delhi. He further deposed that direct theft of electricity was going on at the premises in question and the accused was indulged in direct theft by directly connecting to meter input with the help of illegal wire. He further deposed that the connected load of the premises in question was approximately 5.355 KW for domestic purpose. Videography of connected load was conducted at site. PW1 proved the documents prepared at site i.e. inspection report, load report and seizure memo as Ex.CW2/A (Colly) to Ex.CW2/C. PW1 proved the case property i.e. electronic meter bearing no. 13352577 as Ex.P2 and the wires as Ex.P3 (Colly). PW1 identified the videography as Ex.CW2/D and also identified both accused by BRPL VS. RUKHSHANA & ANR CIS NO.641871/16 Page no. 5 of 15 6 pointing out in the videography and also present in the court on the day of his deposition.
9. In his crossexamiantion on behalf of both accused persons, PW1 replied that the MDI of seized meter was 2.27 KW. He further replied that there was no terminal cover of the meter in question. He further replied that there is no necessity to remove the terminal cover of the meter to insert any illegal wire. He further replied that there was no breach in the service line of the meter in question but illegal wires were connected at the input terminal of the meter in question. He denied the suggestion that there was no theft of electricity at the time of inspection. He further denied the suggestion that load was recorded at the higher side.
10. PW2 Sh. Jamal AkhtarDET in the complainant company who has deposed on the similar lines as deposed by PW1.
11. In his crossexamination on behalf of accused persons, he replied that there were two more electricity meters in the entire property wherein inspected premises was situated. He further replied that there is no BRPL VS. RUKHSHANA & ANR CIS NO.641871/16 Page no. 6 of 15 7 necessity to remove the terminal cover in the meter to insert any illegal wire. He further replied that the premises in question was inspected as a routine check. He further replied that there was no breach in the service line of the meter in question but illegal wires were connected at the input terminal of the meter in question.
12. PW3 Sh. VijayVideographer, who has proved the videography conducted by him at the time of inspection as Ex.CW2/D.
13. PW4 Sh. G. B. Barapatre, who prepared the theft bill in the present case and proved the same as Ex. CW2/E.
14. PW5 Sh. Binay Kumar, who proved the filing of present complaint and his G.P.A. as Ex.PW5/A.
15. DW1 Sh. Vinay KumarCustomer Care Associate in the complainant company, who brought the summoned record pertaining to C. A. No. 102239926 for meter bearing no. 13352577 installed at H. No. 63, S/F, Kalu Sarai, Begumpur, Malviya Nagar, New Delhi110017 in the name of accused Jaffaryddin and proved the electricity bill of said connection BRPL VS. RUKHSHANA & ANR CIS NO.641871/16 Page no. 7 of 15 8 as Ex.DW1/A. He further deposed that the electricity connection was disconnected due to nonpayment in the month of January, 2014. He further deposed that accused made a payment of Rs. 7,000/ thereafter. The connection was not restored and the accused was using the electricity through direct theft of electricity. During cross examination on behalf of complainant company, DW1 replied that after making payment of Rs. 7,000/ in the month of March 2014, the dues of Rs. 46,080/ were remained on behalf of accused persons.
16. During arguments, it is submitted by ld. counsel for the complainant company that in the leadership of Sh. Mani Bhushan Saroj, the officials of the complainant company on 25.03.2014 at about 3.30 p.m. visited and inspected the premises bearing H. No. 63, Second Floor, Kalu Sarai, Begampur, Malviya Nagar, New Delhi110017 and on reaching the site, officials found that direct theft of electricity was going on at the premises in question and accused were indulged in direct theft by directly connecting through meter input with the help of illegal wires. The connected load was taken as 5.355 KW for domestic purpose. It is submitted that the illegal wires were seized at site and necessary documents were prepared which are duly proved by the witnesses BRPL VS. RUKHSHANA & ANR CIS NO.641871/16 Page no. 8 of 15 9 deposed before this Court. The necessary videography was conducted and is duly proved. It is further submitted that PW1 Sh. Mani Bhushan Saroj has duly identified the presence of accused persons at the time of inspection and the same is also depicted in the videography.
17. It is further submitted that in order to prove its case, complainant company has examined five witnesses who have duly proved the case of the complainant company. Ld. counsel for complainant company has further submitted that it has been held in catena of cases decided by Hon'ble Apex Court as well as Hon'ble High Court of Delhi that in the cases of direct theft of electricity, the complainant company is required to establish three ingredients:
(i) identity of premises in question;
(ii) identity of accused persons;
(iii) the connection of accused persons with the premises in question and that direct theft of electricity was being committed at the premises in question.
18. It is further submitted that all the witnesses during trial have duly proved abovesaid three facts. Ld. counsel for complainant company has argued BRPL VS. RUKHSHANA & ANR CIS NO.641871/16 Page no. 9 of 15 10 that premises in question is not disputed, the presence of accused persons and the connection of accused persons with premises in question is also not disputed. Ld. counsel for complainant company has taken me to the crossexamination of PW1 and submits that it has come in the crossexamination of said witness that the illegal wires were connected at the input terminal of the meter in question. The relevant extract of his crossexamination is reproduced as under: ......."There was no breach in the service line of the meter in question but illegal wires were conducted at the input terminal of the meter in question. It is wrong to suggest that there was no theft of electricity at the time of inspection. It is wrong to suggest that connected load shown in the load report was not covered under videography at all. It is wrong to suggest that AC shown in the load report was having a load of 2.150 KW. Vol. It was of 2.250 KW. It is wrong to suggest that load was recorded on higher side."
19. Ld. Counsel for the complainant company has further submitted that it has come in the defence evidence produced by accused that at the time of inspection, the electricity connection at the premises of accused was disconnected due to nonpayment in the month of January 2014 and accused only made the part payment of Rs. 7,000/ and Rs. 46,080/ still remained as due. It is further argued by ld. counsel for complainant company that even in statement of DW1 Sh. Vinay Kumar, it has come that accused are still indulged in direct theft of electricity. BRPL VS. RUKHSHANA & ANR CIS NO.641871/16 Page no. 10 of 15 11
20. On the other hand, ld. counsel for accused has submitted that there was no theft of electricity at site and accused were using the electricity by paying legal charges to the complainant company. Ld. counsel for accused has further argued that it is a case on deviations of DERC rules and regulations to the fact that preparation of documents is not depicted in the CD and accordingly, the said documents were not prepared at site and also no enquiry to accused persons was done at site. It is further submitted that excess and exhorbitant load has been taken in this case as the load of AC is shown as 2.150 KW but the AC is only of 1 KW.
21. In rebuttal to abovesaid arguments, ld. counsel for complainant company has submitted that nothing has been placed on record by accused persons to show that they were paying legal charges against the electricity consumed by them at their premises since no electricity bill has been placed on record. It is further argued that it is only a bald assertion on behalf of accused that the load of AC was only 1 KW as nothing has been placed on record in order to substantiate his pleading. BRPL VS. RUKHSHANA & ANR CIS NO.641871/16 Page no. 11 of 15 12
22. It was argued by ld. counsel for accused that accused have already deposited the amount of Rs. 40,000/ in this case and the complainant company has issued the NOC but since accused had a fair case so he chose not to accept the NOC issued by complainant company in this case and to face the trial. However, in rebuttal to these arguments, ld. counsel for the complainant company has submitted that nothing has been placed on record to show that the complainant company had issued any NOC in this case and further submitted that even if NOC is issued to accused in some case but once the accused has not accepted the NOC and is ready to face the Trial then he is liable for the outcome of the Trial. Ld. counsel for the complainant company has taken me to the deposition of DW1, which is reproduced as under: ".............I am a summoned witness and I have brought the record vide C.A. No. 102239926, meter no. 13352577 installed at H. No. 63, S/F, Kalu Sarai, Begumpur, Malviya Nagar, New Delhi110017, in the name of Jaffaryddin and sanctioned load of the supply is 4 KWs and sanctioned category of the supply is domestic purpose and date of energisation 29.04.1998 and computer generated electricity bill is exhibited as Ex.DW1/A. The electricity connection was disconnected due to nonpayment in the month of January, 2014. Thereafter, accused made a payment of Rs. 7,000/. Thereafter, also the connection was not restored and the accused is using the electricity through direct theft of electricity. I inspected the premises yesterday since I have to come to depose before this Court to know the status of the premises in question and still the accused is indulged in direct theft and there is no electricity meter at site.
BRPL VS. RUKHSHANA & ANR CIS NO.641871/16 Page no. 12 of 15 13 XXXX by Sh. Naresh Bhardwaj, Counsel for complainant company.
After the payment of Rs. 7000/ made by the accused in the month of March, 2014, the remaining dues are Rs. 46,080/. It is correct that only after the payment of this amount, the electricity connection will be restored. I am deposing on the basis of summoned record brought by me in the Court today........."
23. Heard. Considered. Record perused carefully.
24. After hearing the arguments on both sides, the Court has come to the conclusion that the premises in question is not disputed, the connection of the accused with the premises in question is also not disputed as well as the presence of accused persons at the time of inspection is also not disputed and is duly depicted in the videography. Certain facts have come on record on the basis of deposition of witnesses that at the time of inspection, meter in question was disconnected as has duly found in the deposition of PW1 Sh. Mani Bhushan Saroj, it has come in the fora that the electricity supply of accused persons was disconnected on account of nonpayment of due charges. It has been duly depicted in the videography and also deposed by witnesses that the illegal wires were connected at the input terminal of the meter for committing theft of electricity. The submission of ld. counsel for accused that the NOC was BRPL VS. RUKHSHANA & ANR CIS NO.641871/16 Page no. 13 of 15 14 issued against the theft bill to the accused is irrelevant in this case as the accused had chosen to face the Trial and to take chance for acquittal and once the accused has chosen to face the Trial, he is bound by the outcome of the same. Nothing has been placed on record by the accused persons that at the time of inspection at the premises in question, he was paying the electricity charges as no electricity bill for the time when inspection was conducted has been placed on record by the accused. Reliance is placed on a judgment in case title as Mukesh Rastogi Vs. North Delhi Power Limited, in Criminal Appeal No. 531/2007, decided on 23.10.2007, wherein, the Hon'ble High Court of Delhi has held 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".
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7. "I consider that even if the inspection was not a valid inspection, complainant had a right to prove theft of electricity done by the appellant irrespective of the status of inspection. The invalid inspection does not make theft of electricity as a noncrime. Theft of electricity remains a crime irrespective of fact that inspection is valid or not. Supreme Court in State & Ors. v. N. M. T. Joy Immaculate 2004(5) SCC 729 observed that admissibility or otherwise of a piece of evidence has to be judged having regard to the provisions of the Evidence 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. I, therefore, consider that even if the inspection was not conducted by an Officer as designated under the notification date 31st March, 2004, the members of the inspection team, who had visited the site and found that 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....."
25. In view of aforesaid discussion, I am of the considered opinion that complainant has been successful in proving the case against both the accused beyond reasonable doubt. Accordingly, accused namely Rukhshana is held guilty u/s. 135 of the Electricity Act, 2003 and accused Jaferyddin @ Jafruddin is held guilty u/s 135 r/w Section 150 of the Electricity Act, 2003. The file be consigned to record room.
Announced in the open ( NEELAM SINGH)
court on this 20th November, 2017 ADDL. SESSIONS JUDGE
SPL. ELECTRICITY COURT
SAKET COURTS, NEW DELHI
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