Ranbir Kaushik vs B.S.E.S. R.P. Ltd.
2009 Latest Caselaw 3224 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                    Crl. Rev. P. No. 399/2009


                                     Date of Decision : 18.08.2009

Ranbir Kaushik                                    ......Petitioner
                                Through:   Mr. N. S. Dalal, Adv.

                                 Versus

B.S.E.S. R.P. Ltd.                                ...... Respondent
                                Through:   Ms. Anjali Sharma with
                                           Mr. Pankaj, Advs.



CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

1.     Whether Reporters of local papers can be
       allowed to see the judgment?                    YES
2.     To be referred to the Reporter or not ?         YES
3.     Whether the judgment should be reported
       in the Digest ?                                 YES

V.K. SHALI, J. (Oral)

1. This is a revision petition filed by the petitioner by virtue of

which the petitioner has challenged the order dated 2 nd June,

2009 passed by Mr. Anoop Kumar Mendiratta, the learned

Additional Sessions Judge/Special Electricity Court, Dwarka,

New Delhi. The aforesaid order is challenged on the ground that

while enlarging the petitioner on anticipatory bail the learned

Additional Sessions Judge could not have imposed a condition

regarding deposit a sum of Rs.7,00,000/- towards the theft

assessment bill as a pre condition.

2. That briefly stated the facts of the case are that an

inspection of premises bearing shop no.5 at property no.22-B,

Block-NW, Vishnu Garden Extension, New Delhi-110018

belonging to the petitioner was conducted. It was alleged in the

inspection report that the meter installed at the premises in

question was not having any display while as the connected load

was being consumed from the said meter. The CMRI data could

not be down loaded due to the connection failure. The

respondent/complainant observed that there was high voltage

sparking marks/ burning marks on the optical port of the said

meter indicating that the meter was subjected to high voltage by

the consumer drawing the electricity. Accordingly, the petitioner

was alleged to have been consuming electricity through tampered

meter and total connected load was found to be 132.132 KW as

against the sanctioned load of 41 KW for industrial purpose.

3. On 9th September, 2008 further inspection was conducted

for the purpose of seizing of meter, however, the meter which was

seen on 6th September, 2008 was found to have been deliberately

burnt and smell of kerosene emanating from the same. A show

cause notice was purported to have been issued to the petitioner

that he should be assessed for electricity consumption on the

basis of fraudulent abstraction. Thereafter, a speaking order was

passed on 26th September, 2008 raising a theft assessment bill

for a sum of Rs. 93,78,630/-. After completing the formalities

the respondent/complainant filed a complaint case in the Court

of Special Electricity Court which was heard by the learned

Additional Sessions Judge on 22nd July, 2009. The petitioner

appeared before the said Court with a prayer for grant of

cancellation of warrant as the same was issued against the

petitioner on account of his continuing evasion to appear before

the Court in order to seek the indulgence of the Court. The

learned counsel for the petitioner made a statement that they

were voluntarily prepared to deposit a sum of Rs.7,00,000/-

towards the theft assessment of bill.

4. It was on the basis of this voluntarily statement made by

the learned counsel for the petitioner that the learned Additional

Sessions Judge directed the petitioner to be admitted on bail on

furnishing a personal bond in the sum of Rs.40,000/- with one

surety for the like amount with the condition that the amount of

Rs.7,00,000/- volunteered to be deposited by the petitioner

towards the theft assessment bill shall be paid without prejudice

to the contentions of the parties in three installments. The first

installment would be of Rs.3 lacs which was to be deposited

within a period of one month from 2nd June, 2009 and the

remaining two installments of Rs.2 lacs each were ordered to be

deposited within a period of six weeks each, thereafter. This

order was passed on 2nd June, 2009.

5. After availing of the aforesaid benefit of bail the present

revision petition has been filed and it has been urged that no

condition could be imposed by the learned Additional Sessions

Judge regarding deposit of Rs. 7,00,000/- while enlarging the

petitioner on bail. The learned counsel for the petitioner has

placed reliance on case titled Munish Bhasin & Ors. Vs. State

(Government of NCT of Delhi) & Anr. (2009) 4 SCC 45, Suresh

Chandra Raman Lal Vs. State of Gujarat & Anr. (2008) 7 SCC

591 and H.S. Pannu Vs. Govt. of NCT of Delhi & Anr. 145

(2007) DLT 101.

6. As against this, the learned counsel for the

respondent/complainant has contended that no such condition

as is sought to be urged by the petitioner was imposed regarding

the deposit of Rs.7,00,000/- as a matter of fact it was the

petitioner and his counsel who had volunteered to deposit the

amount in order to avoid the execution of warrants against him

and threat of being incarcerated on account of continued

absence. They volunteered to deposit a sum of Rs.7,00,000/-

towards the theft assessment bill to earn their liberty. The

learned counsel further contended that a distinction is to be

made between a case where the condition of this nature was

imposed by the Court as against the case where a

petitioner/accused either in person or through his duly

authorized counsel volunteers to deposit an amount towards the

theft assessment bill without prejudice and contentions. In the

later case it could not be said to be a condition which is imposed

by the Court, and therefore, cannot be assailed by a party after

getting a bail order.

7. I have considered the respective submissions of the parties

and gone through the record.

8. The learned counsel for the petitioner has also filed an

affidavit dated 29th July, 2009 trying to explain the statement

which is purported to have been made by his counsel voluntarily

by observing as under:

"That during the course of hearing the bail application the following situation occurred. Had my counsel not volunteered to give statement to deposit a certain amount then it was certain at that time that the learned Trial Court would have rejected the bail and would have sent me in judicial Custody. It is pertinent to mention here that my counsel initially volunteered to give statement to deposit Rs.3,00,000/- to which the learned Trial Court did not agree. Then my counsel requested for Rs.5,00,000/-, even to which the learned Trial Court did not agree. Finally the amount to be deposited settled at Rs.7,00,000/-. Under the threat of being behind the bar and rejection of the bail application, the aforesaid statement came to be made by my counsel. Hence, it can be said that the situation compelled my counsel to give statement to deposit Rs.7,00,000/."

9. A perusal of the aforesaid extract of the affidavit would

clearly show that the petitioner himself was at fault on account

of his continued absence and he had sought enlargement on bail

as he was apprehending that he will be sent to jail so he

volunteered to deposit a sum Rs.7,00,000/- towards the theft

assessment bill of his own. The reasoning which has been given

by the petitioner is now that in case he would not have

volunteered he would have been sent behind the bars is of no

consequence as the fact remains that the said statement was

made by his counsel voluntarily. No doubt, the Hon'ble Supreme

Court in Suresh Chand and Munish Bhasin's case (supra) have

clearly laid down that while enlarging a party on bail only a

condition which is germane to procure his attendance in Court

can be imposed but that would not cover a case where a party of

his own will comes forward with a view to get the benefit of bail.

It is in the light of the same background that the present

condition of depositing a sum of Rs.7,00,000/- in various

installments was passed by the learned Additional Sessions

Judge on 2nd June, 2009. On the basis of this voluntarily

statement of the learned counsel for the petitioner, it cannot be

said that the direction to deposit Rupees Seven Lacs given by the

learned Court was in violation of the law laid down by the

Supreme Court.

10. So far as the judgment of the learned Single Judge of this

Court in H.S. Pannu's case (supra) is concerned, that also

echoes the same proposition that while granting the anticipatory

bail in theft cases the Special Court should not ordinarily impose

a condition as a precedent for grant of bail as that would

tantamount to reducing the Special Court to the Court of

recovery on behalf of Electricity Companies. But facts of the

said judgment in H.S. Pannu's case (supra) is also

distinguishable from the facts of the present case on account of

the fact that a distinction has to be made in a case where a

condition is imposed by the Court by way of pre deposit for

enlarging the petitioner on bail and a case where the accused

himself volunteers to make the payment of his own. The present

case admittedly falls in the latter category and accordingly does

not offend the law laid down by the Hon'ble Supreme court or by

the learned Single Judge of this Court. On the contrary, this

view finds support from the judgment of another Single Judge of

this Court in case titled Sanjit Malik & Anr. Vs. The State

(NCT) & Ors. bearing Crl. Rev. P. No. 360/2007 decided on 24 th

January, 2008.

11. For the reasons mentioned above, I feel that there is no

illegality, impropriety or incorrectness in the order dated 2nd

June, 2009 by the learned Additional Sessions Judge and the

present petition is misconceived and the same is dismissed.

V.K. SHALI, J.

August 18, 2009 KP