Sushil Sharma vs Bses Rajdhani Power Ltd. & Anr.
2010 Latest Caselaw 5844 Del

                * IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                Date of Reserve: 28th October, 2010
                                                Date of Order: 22nd December, 2010

+ Crl.Appeal No. 1060/2010 & Crl.M.(B) No. 1253/2010
%                                                                      22.12.2010

        Sushil Sharma                               ... Appellant
                    Through: Mr. R.S.Malik & Mr. Ashok Ahlawat, Advs.

                Versus


        BSES Rajdhani Power Ltd. & Anr.           ... Respondents
                  Through: Mr. Sunil Fernandes, Standing Counsel
                  for BSES with Mr. Deepak Pathak, Advocate


JUSTICE SHIV NARAYAN DHINGRA

1. Whether reporters of local papers may be allowed to see the judgment?

2. To be referred to the reporter or not?

3. Whether judgment should be reported in Digest?

JUDGMENT

By this appeal the appellant has assailed judgment dated 20th

August, 2010 whereby the appellant was convicted under Section 135 of

Electricity Act,2003 and order on sentence dated 25th August, 2010 whereby

the appellant was sentenced to undergo RI for a period of two years and a

fine of Rs.87,03,303/-.

2. On 14th July, 2006 a team of enforcement officials inspected the

premises belonging to Shri Sushil Sharma, appellant. The premises was

situated in village Baprola, near Khate Wala Sub-Station, Nangloi. An

industrial unit was running in the premises. There was no authorized

electricity supply in the premises. There was an electric pole of LV main

located within the premises and the electric supply to the industrial unit was

taken by direct tapping of electricity from the electric pole using heavy duty

electric cables. It was found that it was a case of direct theft of electricity by

tapping electricity from complainant's LV main line running through the

premises of the accused with the help of cable. Since there was no legal

connection, no meter was there. The team took photographs showing theft of

electricity and drew sketches depicting electricity being stolen from BSES LV

mains line. The inspection team after inspection seized the material with help

of which theft was being committed including distribution board installed by

the appellant to distribute stolen electricity to different machines. At the time

of raid, the accused/appellant, his workers and manager were found present

and the industrial unit was functioning. However, during inspection accused

slipped away from the site and therefore the inspection note was not signed

by the accused. The total load found connected in the industrial unit for which

electricity was being illegally drawn was 290.062 KW. After detecting this

theft of electricity for running an entire industrial unit, a complaint was filed

before learned Special Judge for trial of the accused. During trial, the

inspection team members appeared in the witness box and proved the direct

theft of electricity from LV mains pole of the complainant. The cables wires

and distribution board seized from the spot were exhibited. The photographs

and sketch showing connection having been taken from the pole directly into

the factory premises and going up to distribution board and machines were

proved.

3. The appellant's main contention before the trial Court was that

he had nothing to do with the premises and the complainant has not brought

on record evidence to show that he was the owner of the premises or he was

the user of the stolen electricity. It was argued that he was made accused

only on the basis of hearsay evidence of workers and manager and workers

and manager were not examined in the Court. However, the trial Court turned

down this argument and found there was enough evidence to show that it was

the 'accused/appellant' who had indulged into theft.

4. In appeal, the appellant has argued that the inspection team had

taken many photographs but in none of the photographs, the focus was on the

appellant thus, the presence of the appellant on the site was not proved. The

appellant or the workers present at the site were not apprehended by the

police. If the appellant was indulging in theft he would have been arrested on

the spot itself since the inspection team was accompanied by the local police.

Non-arrest of the appellant shows that he was not present on the spot and he

had nothing to do with the premises. The next ground taken is that the

assessment of the connected load was not done on the spot since the column

of total connected load was left blank and connected load was assessed on

speculation basis in the office of the complainant. Trial Court also failed to

appreciate that no independent person was examined as a witness in this

case. It is further submitted that since there was no evidence to connect the

appellant with the theft of electricity, there was no proof of ownership, no proof

of khasra/girdawari therefore, the conviction of the appellant was liable to be

set aside.

5. The plea taken by the appellant about him not being the real

accused must fail. The appellant was found present at the premises when the

inspection team reached the premises and started inspection. The inspection

started in his presence, this fact was proved by PW-1 who testified that when

the inspection team reached the premises of Village Baprola, Nangloi, it found

manufacturing of PVC packing strip activity going on. The appellant was

present there in the factory besides workers and the machines were working.

In cross examination he further testified that appellant Sushil Sharma was

owner and user of the factory and this fact was confirmed by the inspecting

team from the workers as well from the person found present in the factory

premises, who appeared to be in-charge (of production). PW-2 also testified

to the same fact that the appellant was present in the factory and was the

owner of the factory.

6. Apart from oral testimonies of witnesses, who were members of

the inspection team, there is intrinsic evidence to show that it was the

appellant who was running this factory and indulged into theft of energy. The

summon to the appellant, in respect of this complaint of theft of electricity, was

served on the appellant at the same premises where theft had taken place.

When the appellant filed his bail bond in the Court, the appellant did not give

any other address except this address. The appellant is a resident of village

Baprola where this factory was found existing, in the surety bond his surety

also gave address of the appellant as the same i.e. Village Baprola Nangloi.

Had the appellant not been owner of this premises and had nothing to do with

the premises, the first thing the appellant would have done was to inform the

Court as to who was the owner of the premises. The very fact that the

appellant was served summons of the Court at the same premises and he did

not inform the Court any other of his address nor he informed despite being

resident of village Baprola as to who else, if not he, was the owner of this

premises shows that the appellant took a false plea that he was not the owner

of the premises. Even in appeal, the appellant has given his address that of

village Baprola only and he has not given any other address. He has not

stated if he was not the owner then who was the owner of the premises.

7. Under Section 135 of Electricity Act the onus on the complainant

was to prove abstraction of electricity by artificial means or means not

authorized by the complainant. It is not the case of the appellant that he was

having authorized meter or authorized electricity connection in the premises.

The complainant discharged its onus of proving abstraction of electricity by

examining members of inspection team, producing the devices through which

electricity was being abstracted and proving the mode of abstraction. Once

this onus was discharged, the onus was on the appellant to show that he was

not indulging into abstraction of electricity. The appellant failed to discharge

this onus and the trial court rightly convicted the appellant.

8. The plea taken by the appellant that the total load was not

assessed on the spot is also baseless. The total load being used in Industrial

Unit is a total sum of loads of all machines found installed in the Industrial

unit. The inspection note gives details of all the machines found installed

there with their respective loads. Merely because a sum total has not been

written does not mean that total load was wrongly stated. Inspection report

had annexure 'C' being Exh. CW-2/B running into three pages where load of

each machine is specified and total has been written at the end of the

calculation as 290.062 KW. Merely because this total sum was not

mentioned in the other part of the report does not mean the total load was not

calculated on the spot. Even otherwise that makes not much of the difference

whether the total connected load was 290 or 250 or 340 KW. The issue is

whether the appellant was indulging into theft of electricity and that was

proved beyond reasonable doubt.

9. The fact that appellant was not arrested on spot does not

disprove the case of complainant/respondent. In fact the cognizance of an

offence of theft of electricity can be taken only by special court constituted

under Electricity Act and that also on a written complaint. That explains why

police does not arrest electricity thieves. Non-examination of independent

public witness is no infirmity. The members of inspection team, who testified

in Court were having no enmity against the appellant and their testimony is

trustworthy.

I find no force in the appeal. The appeal is hereby dismissed.

December 22, 2010                          SHIV NARAYAN DHINGRA, J.
vn