Delhi District Court
Bses vs . Tayub Khan, Cc No. 83/12 Page No. 1 Of 14 on 3 April, 2014
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IN THE COURT OF SHRI RAKESH TEWARI, ADDITIONAL SESSIONS
JUDGE, THE SPECIAL COURT UNDER THE ELECTRICITY ACT 2003,
SAKET COURTS, NEW DELHI
Complaint Case No. : 83/12
Police Station : Fatehpur Beri, New Delhi
U/s : 135 of Electricity Act, 2003
Unique ID No. : 02403RO092242012
BSES Rajdhani Power Ltd.
Having its registered Office at
BSES Bhawan, Nehru Place,
New Delhi110019
and its Corporate, Legal and Enforcement Cell at
Andrews Ganj, Next to Andrews Ganj Market,
New Delhi110049
Acting through Ashutosh Kumar,
(Authorised Representative)
...Complainant
Versus
Shri Tayub Khan @ Tayyab
S/o Shri Fazruddin
At: Mamta Da Dhaba,
LHS of Kh. No. 56/2,
Truck Market, Main Road,
Satbari Village,
New Delhi110074
...Accused
Appearances : AR with Shri Rajesh Kumar, counsel for complainant.
Accused Tayub Khan @ Tayyab is present on bail along
with Shri Sunil Bhatt, Advocate.
Complaint instituted on : 17.03.2012
Judgment reserved on : 26.03.2014
Judgment pronounced on : 03.04.2014
JUDGMENT
BSES Vs. Tayub Khan, CC No. 83/12 Page no. 1 of 14 2
1. The case of the complainant in brief is that on 29.11.2011, the officers of the complainant company namely, Shri Nirankar Singh - Assistant Manager, Shri Manish Kumar - Diploma Engineer and Shri Afroz Ansari - Diploma Engineer conducted inspection at premises i.e. Mamta Dha Dhaba, LHS of Kh. No. 56/2, Truck Market, Main Road, Satbari Village, New Delhi and accused was found indulged in direct theft of electricity by tapping from BSES distribution box and accused was found using total connected load of 3.290 KWs for nondomestic purpose. It is further mentioned in the complaint that inspection team had seized the illegal wires. It is further mentioned in the complaint that inspection report along with diagram of the manner in which the theft was being committed, load report and seizure memo were also prepared at the site and necessary videography was also conducted at the spot.
2. It is further mentioned in the complaint that it was a case of direct theft of electricity and theft bill as per DERC Regulations and tariff order was raised by the complainant for Rs.1,43,083/ with due date as 08.01.2008 and was served upon the accused but he failed to pay the said theft bill.
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3. The case was fixed for presummoning evidence and my Ld. Predecessor vide his order dated 23.04.2012, summoned the accused, but as per report on the summons, no dhaba of the name of the premises in question and the accused was found present and it was directed to the A.R. of the complainant to submit the details of the accused. On 16.08.2012, an application was moved on behalf of the complainant for issuance of the notice to the owner of the premises in question Mukku Haji and one Roz, who were owner as well as users, respectively of the premises in question and my Ld. Predecessor issued court notices to the said persons. Thereafter, said Mukku Haji was issued with bailable warrant by my Ld. Predecessor and in execution of the same, said Mukku Haji appeared on 26.09.2012, who informed that accused Tayub Khan S/o Hazaruddin, who was tenant in the premises in question, vacated the premises and shifted to Kharak, Satbari, New Delhi and said Mukku Haji was ready to assist the process server in identifying and producing accused Tayub Khan before the court and accordingly, bailable warrants were issued against the accused and thereafter, on 16.10.2012, accused appeared through his counsel and thereafter vide order dated 29.01.2013, notice u/s. 251 Cr.P.C. for the offence punishable u/s. 135 of the Electricity Act, 2003 was framed against the accused to which he pleaded not guilty and BSES Vs. Tayub Khan, CC No. 83/12 Page no. 3 of 14 4 claimed trial and accused answered that he is not liable to pay any loss or damage to the complainant company.
4. In order to prove the case of the complainant, five witnesses were produced, which have been discussed below.
5. The statement of the accused Tayub Khan was recorded u/s. 313 Cr.P.C. and accused pleaded his innocence and denied the evidence as false and answered that he was not the owner of the premises in question and that he was running a dhaba under the name and style of Khan Bawarchi Khan, which was closed in January/February, 2011 and he was not aware of the preparations of the exhibited documents. Accused further answered that he was paying electricity charges @ Rs. 1000/ per month excluding the rent of Rs. 9,000/ to the landlord Hazi Mukku and he had vacated the premises as the said landlord had enhanced the rent upto Rs. 12,000/ and his dhaba was not running well. Accused further replied that landlord might have given his name in order to escape from his own liability. However, the accused opted to lead defence evidence and appeared as DW1 vide permission under section 315 Cr.P.C., which has been discussed below.
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6. I have heard the counsel for the complainant and counsel for the accused, Shri Sunil Bhatt, Advocate. I have also perused the record including the CD of videography displayed on the computer screen of the court.
7. PW1 Shri Nirankar Singh was the Assistant Manager of the complainant company who deposed that 29.11.2011 at about 11.00 a.m., he along with Shri Manish Kumar, Shri Afroz Answari, Shri Ajay Kumar and Shri Sundar Lal had visited and inspection the premises i.e. left hand side of Khasra No. 56/2, Truck Market, Main Road, Village Satbari, near Pole No. SKT316, New Delhi and that on reaching the said premises, they found that there was no electricity meter installed and that accused Tayub Khan was running "Mamta Ka Dhaba" there and that accused was not present at the time of inspection. PW1 further deposed that the name of the accused was disclosed by his employees. PW1 further deposed that accused was committing direct theft of electricity by directly tapping from BSES distribution box with the help of illegal wire, which was connected to the connected load of the premises and that they assessed the total connected load which was found to be approx. 3.29 KW for commercial purpose. PW1 further deposed BSES Vs. Tayub Khan, CC No. 83/12 Page no. 5 of 14 6 that they disconnected the supply of the electricity which was running through the direct theft and they also removed and seized the illegal wire. PW1 also proved the inspection report including the meter report, load report and seizure memo as Ex. CW2/1, CW2/2 and Ex. CW2/3. PW1 deposed that they offered the the said documents to employees of the accused, but they refused to receive and sign the same. PW1 also identified the seized wire i.e. one black and one fented red colour aluminium wire in length approximately ½ meter each, collectively as Ex. P2. PW1 also identified videography and proved the CD of videography as Ex. CW2/3.
8. In his cross examination on behalf of the accused, PW1 could not tell as to which type of shop was adjacent to the inspected site, however, there were trucks standing on the back side. PW1 replied that Khasra no. 56/2 was around 2 ½ begha, which consisted of 1012 shops and that on the day of inspection , he did not inquire as to who was the owner of the Khasra no. 56/2. PW1 further replied that after getting instructions for reinspection of the site, he came to know that the owner of Khasra no. 56/2 was one Mukku Haji, who was user of 'Raj Shakahari Dhaba' at the relevant time. PW1 answered that the name of the user was revealed to them by the BSES Vs. Tayub Khan, CC No. 83/12 Page no. 6 of 14 7 person present at the spot, who told that they were the employees of Tayub Khan as mentioned in Ex. CW2/1 and Ex. CW2/2. PW1 replied that he tried to find out names and addresses of said employees, but they refused to reveal their identity. PW1 admitted it as correct that fact regarding the identity of said employees, was not mentioned in the complaint and that he had the knowledge that the said premises was being run by the tenants. PW1 replied that the seized wires were cut from the wall outside the inspected site from where the tapping was being done inside. On being confronted with the CD of videography, PW1 answered that the tapping point was visible in the CD, but removal of the wire, from where the tapping was being done, was not covered in the videography. PW1 replied that the wire connecting the pole and premises in question for direct tapping, was not seized as a whole nor the same was disconnected from the pole. PW1 admitted it as correct that there were other tappings also in other shops/premises by the same wire, which was being used for tapping in the premises in question. PW1 replied that other shopkeepers or the persons in other shops located in the said Khasra number, could not be booked for direct tapping of electric energy because it took about half an hour in the proceedings conducted at the premises in question and during said time, other shopkeepers successfully BSES Vs. Tayub Khan, CC No. 83/12 Page no. 7 of 14 8 removed the tapping from their respective premises. PW1 replied that he had no knowledge as to whether after coming to know that said Mukku Haji was the owner of the premises, any coercive method was applied or adopted qua the electric supply or electric meter installed in his premises.
9. PW2 Shri Manish Kumar was the Diploma Engineer of the complainant company, who deposed almost on the same lines as deposed by PW1 and as mentioned in the complaint.
10. In his cross examination on behalf of the accused, PW2 answered that the present case was the only case, where the raid was conducted as per instructions and that the Khasra no. 56/2, where the said dhaba was situated was approx. 2 ½ begha and there were 1012 other shops also in the said khasra. PW2 replied that they did not collect any information with regard to source of electricity in the other shops in the said khasra. PW2 could not tell the size of said shops, however, the same had been covered in the videography. PW2 replied that when they started the raid, they had no information as to who was the owner of the said 1012 shops including the premises in question, but the workers present in the premises in question disclosed that the said shop belonged to the BSES Vs. Tayub Khan, CC No. 83/12 Page no. 8 of 14 9 accused. PW2 replied that they could not know as to who was the owner/owners of the remaining shops situated there. PW1 answered that the statement of workers, who disclosed the name of the accused as owner, was not recorded. PW2 replied that the had no knowledge as to whether the premises in question was re inspected. PW2 had no knowledge on the day of his deposition as to whether any electric meter was installed in the said shop because neither prior to nor subsequent to the said day, he had visited the said shops. PW2 admitted it as correct that the diagram shows the electric pole on which distribution box was affixed from which the direct tapping was going on in the shop in question. PW1 replied that the length of the wire connecting the said distribution box and the shop in question for illegal tapping was approximately 5 metres. He volunteered that the illegal wire was seized to the extent indicated above from the roof of the said shop in question. PW2 did not recollect as to why, the remaining wire could not be seized or as to whether the seized wire was actually seized from the said roof. PW2 could not tell as to whether the said alleged illegal wire was cut just from the point where it was fixed to the distribution box as shown in the diagram at page no.3 of the inspection report and the lineman might be knowing about the same. On confrontation with the videography, he was not clear as to which BSES Vs. Tayub Khan, CC No. 83/12 Page no. 9 of 14 10 wire was going towards the shop in question and even the wire from the roof to premises may be more than five meters.
11. PW3 Shri Sundar Lal was the videographer, who deposed that he had conducted the videography on 29.11.2011 on the direction of Shri Nirankar Singh and he also proved the CD of videography as Ex. CW2/3. In his cross examination on behalf of the accused, PW3 replied that he did not take assistance of and the videography was conducted by him exclusively. PW3 could not tell as to whether apart from the videopgraphy conducted at the Mamta Ka Dhaba , how many other videography were conducted by him. PW3 replied that he had covered the cutting of illegal wire and its seizue by the said officials in the videography.
12. PW4 Shri G.B. Barapatre was the Deputy Finance Officer, who proved the theft bill as Ex. CW2/5, which was prepared by him after considering the inspection report, load report. In his cross examination on behalf of the accused, he replied that he did not see the previous bills raised for regular consumption of the energy within the same premises.
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13. PW5 Shri Ashutosh Kumar, A.R. of the complainant company, is a formal witness, who proved his GPA Ex.CW1/2 and he further proved the complaint as Ex.CW1/1 and in his cross examination on behalf of the accused, he admitted that he has no personal knowledge of the case.
14. DW1 accused Tarun Pal Oberoi deposed that he used to run Khan Bawarchi Khana from the premises in question and had left the same in the month of January/February 2011 because the landlord raised the rent of the same from Rs. 9000/ per month to Rs. 12,000/ per month. DW1 deposed that he used to pay Rs. 1000/ towards electricity charges to the landlord and as per his knowledge, there was one meter in the adjacent shop which was also on rent from which the landlord used to supply electricity to all the tenants including him as there were 45 shops belonging to same landlord in the same premise. DW1 further deposed that he never took any work in the name of Mamta Dhaba and that since beginning he was running his dhaba in the name of Khan Bawarchi Khana. DW1 further deposed that he was unable to pay enhanced rent as he was not earning sufficiently and left the premises in question and in fact after that he left the said profession and was running a small tea shop. DW1 was not aware as to who was using BSES Vs. Tayub Khan, CC No. 83/12 Page no. 11 of 14 12 or occupying the premises in question at the time of filing of the present complaint. DW1 deposed that when occupied the said premises on rent, the electricity was already there and he never made any efforts or any act to get electricity by any means.
15. In his cross examination on behalf of the complainant, DW1 replied that he was running the dhaba in Truck Market, Satbari Village. DW1 did not remember the exact plot or khasra number of the above said dhaba and that Shri Haji Mukub was his landlord. On being confronted with the CD of videography Ex. CW2/3, DW1 denied that the said dhaba as captured in the videography, belonged to him. DW1 answered that he did not enter into any rent agreement with the said landlord. DW1 did not know any Raj Rathore. DWI replied that he had taken the said dhaba on rent probably in the month of January/February 2007. DW1 replied that there is no written document regarding taking the dhaba on rent or vacating the same. DW1 could not say if Haji Mukub was also known by some other name i.e. Makmuddin. DW1 did not know as to why Haji Mukub had given his address before the court on court notice when he appeared. DW1 answered that there was no enmity as such between him and Haji Mukub. DW1 admitted it as correct that police official had visited his premises i.e. Ambedkar BSES Vs. Tayub Khan, CC No. 83/12 Page no. 12 of 14 13 Colony, Chattarpur Pahari, to execute the bailable warrants issued vide order dated 26.09.2012, where his surety Ismile, who also living in Ambedkar Colony, had given bail bond on execution of bailable warrants.
16. From the cross examination of PW1 and PW2, it is clear that wire used for tapping was not disconnected from the pole and they have also admitted that there were other tappings also in the other shops / premises by the same wire, which was being used for the tapping in the premises in question and PW2, on confrontation from the videography, admitted that it was not clear as to which wire was going towards shop in question and even if the wire at roof of the concerned shop may be taken into consideration, length of the same was certainly more than five meters, but what was seized was only half meter of the wire.
17. In this case, one Haji Muku was summoned through notice by my Ld. Predecessor, who allegedly accompanied official executing the bailable warrants against the present accused and said Haji Muku was admittedly the owner of the premises in question. In the said circumstances, said Haji Muku should have been implicated as accused for abetting the commission of theft of electricity or he BSES Vs. Tayub Khan, CC No. 83/12 Page no. 13 of 14 14 should have been cited as a witness in the case, but nothing was done to that effect. In the circumstances, I am of considered opinion that complainant miserably failed to prove the case against the accused beyond reasonable doubt so as to say that onus, at any point of time, shifted on the accused to rebut the presumption raised against him under 3rd proviso to section 135 of the Electricity Act, 2003.
18. In view of my said discussion, I am of considered opinion that complainant has miserably failed to bring home the guilt of the accused beyond reasonable doubt and accused is entitled to the benefit of doubt and he is acquitted of the offence charged against him u/s. 135 of the Electricity Act, 2003. His PB and SB are cancelled and discharged. The file be consigned to the record room.
Announced in the open ( RAKESH TEWARI )
court on 03.04.2014 ADDL. SESSIONS JUDGE
SPL. ELECTRICITY COURT
SAKET COURTS, NEW DELHI
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