Narendera Kumar Widhani & Anr. vs B.S.E.S. Rajdhani Power Ltd.
2012 Latest Caselaw 3108 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELH%

%                         DATE OF DECISION: 10th May, 2012

+       CRL.M.C. 165/2007

        NARENDERA KUMAR WIDHANI & ANR.      ..... Petitioners
                     Through : Mr.Manoj Singh, Adv.

                     versus

        B.S.E.S. RAJDHANI POWER LTD.           ...... Respondent

Through : None.

CORAM:

HON'BLE MS. JUSTICE PRATIBHA RANI

PRATIBHA RANI, J (ORAL) %

1. The present petition has been filed by the petitioners impugning the summoning order dated 14.11.2006 and the order dated 23.12.2006 passed by learned Addl. Sessions Judge, Special Court (Electricity) in Complaint Case No.853/2006.

2. In brief, the case of the petitioners is that petitioners No.1 and 2 are owners of Flats No.502-503, 5th floor, Siddarth Building, 96, Nehru Place, New Delhi and also registered consumer qua the respondent BSES for supply of electricity in the said flats vide K. No.2530N3390030 and 2530N3390034 respectively which stood disconnected since September, 2005. The aforesaid flats were leased out to M/s Sidhvi Enterprises Pvt. Ltd. vide lease agreement dated 21.05.2006 for running call centre. As per clause 8 of the lease agreement, the lessee i.e. the tenant shall be responsible to pay all charges of electricity and water to the authorities concerned.

3. There was an inspection of the premises by the officials of BSES on 13.07.2006. During inspection, it was found that there was no electricity meter installed in the premises for supply of

electricity and accused persons i.e. the tenants were using the electricity by tapping from the bus-bar of BSES with the aid of illegal tapping wires which were further connected to the connected load of the said premises and thus, the accused were found to be using, consuming and abstracting the electricity illegally by directly tapping from the bus-bar of BSES and committing direct theft of electricity. During inspection it was also found that there was a total connected load of 15.340 KV which was being connected/used through the stolen energy by the accused persons for commercial purposes i.e. call centre.

4. Thereafter BSES filed complaint case No.853/2006 against four accused persons i.e. Sidhvi Enterprises Pvt. Ltd., Sapan Dhawan, Narender and Prem.

5. Vide impugned order dated 14.01.2006, after perusing the material on record, the learned Addl. Sessions Judge, Special Court (Electricity) ordered for summoning of all the accused persons for committing the offence punishable under Section 135 of The Electricity Act, 2003.

6. By another impugned order dated 23.12.2006, the Court directed the release of accused No.3 and 4 subject to the condition of depositing of Rs.1.85 lacs with BSES without prejudice to their rights, against the bill No.AGENR180720060003 on or before the next date of hearing.

7. The impugned orders have been challenged on the ground that as per clause 8 of the agreement, it was the duty of the tenants to pay the electricity bill directly to the authority concerned. The petitioners are old aged persons and the misuse or theft, if any, was committed by the tenants and in the circumstances, the petitioners could not have been made an accused in the complaint case filed by BSES nor they could have been ordered to make deposit in terms of order dated 23.12.2006 subject to which bail was granted, hence both the orders be set

aside.

8. None has appeared on behalf of BSES or on behalf of applicant/tenant during the hearing.

9. Perusal of the proceedings dated 19.01.2007 reveals that the petitioner sought time to deposit the amount of Rs.1.85 lacs in terms of order dated 23.12.2006 which was allowed with direction to deposit the payment by 19.01.2007. On 18.09.2007, this Court was informed about the compliance of order dated 19.01.2007. Thus, the relief claimed in the petition regarding challenge to the order of learned Addl. Sessions Judge, Special Court (Electricity) does not survive as it already stands complied with.

10. The proceedings dated 21.10.2008 reveal that the tenant in the said premises filed an application under Sec.482 CrPC for impleadment which was not opposed. The Court observed that the applicant has a right to make a stand in the petition. Thus the tenant was impleaded as respondent No.2 with liberty to the newly added respondent No.2 to file response to the petition within three weeks and rejoinder within four weeks thereafter. Petitioner was directed to file amended memo of parties.

11. Neither the petitioner cared to file amended memo of parties, nor the tenant felt the necessity to file any response to the petition.

12. The petitioners challenged the summoning order on the strength of clause 8 of the lease agreement which reads as under:-

'8. It shall be the responsibility of the lessee to pay directly all charges for consumption of water and electricity to the authorities concerned. The payment for consumption of water and electricity shall be on actual basis from commencement till expiry or earlier determination of this or extended lease.'

13. In the petition itself, it is mentioned that supply of

electricity in the flats vide K. no.2530N3390030 and 2530N3390034 stood disconnected since September, 2005. There is not even a single averment in the petition or in the lease deed that when there is no electricity connection in the premises leased out, there being already dispute in respect of the earlier electricity connection which stood disconnected, how that dispute was to be resolved with BSES by the landlord and the tenant and how the fresh electricity connection in the premises was to be obtained. Lot of emphasis has been laid by leaned counsel for the petitioners on this clause but when no electricity connection is existing in the premises to the knowledge of the lesser and the lessee , where was the question to pay the electricity charges directly to the authority. Incorporation of such type of clauses in the lease agreement is just an eye wash to befool the authority concerned.

14. It has been contended that the power was being used in the tenanted premises through Gen-set. Unfortunately even this is not forming part of the lease agreement so as to enable the Court to understand that regarding electricity connection, the parties were clear that the call centre for which the premises was taken on rent will not have any electricity connection and would be run only on power through Gen-set.

15. The petitioners are seeking quashing of the complaint and the summoning order. It is settled that in a proceeding initiated on a complaint, exercise of inherent power to quash the complaint/summoning order is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If on reading the complaint as a whole, it appeared that on consideration of the accusations, the ingredients of the offence are disclosed, there would be no justification for interference by this Court in exercise of inherent power. At this stage, it is not for this Court to embark upon the sifting of entire

evidence and form an opinion whether the accused is guilty or not, only consideration at this stage before this Court is to see whether there is prima facie indication of involvement of the accused or not.

16. On perusal of the complaint and the summoning order, it can be gathered that the learned Addl. Sessions Judge, Special Court (Electricity) has applied his mind to the facts and the material placed on record which prima facie was sufficient to indicate involvement of the petitioners in the offence alleged against them. Quashing of complaint and summoning order at preliminary stage will not only be detrimental to the case of complainant but will also have the effect of denying the complainant its right to prove its case which will be against the spirit of law. Whatever pleas are available to the petitioners under law, they will have ample opportunity to prove the same during trial.

17. The proceedings before Trial Court were stayed on 12.02.2009. In the case Santosh De and Anr. vs. Archna Guha and Ors. (1994) 2 SCC 420, in para 5, it was observed as under:-

'15. The facts of this case impel us to say how easy to has become today to delay the trial of criminal cases. An accused so minded can stall the proceedings for decades together, if he has the means to do so. Any and every single interlocutory is challenged in the superior courts and the superior courts, we are pained to say, are falling prey to their stratagems. We expect the superior courts to resist all such attempts. Unless a grave illegality is committed, the superior courts should not interfere. They should allow the court which is seized of the matter to go on with it. There is always an appellate court to correct the errors. One should keep in mind the principle behind Section 465 CrPC. Any and every irregularity or infraction of a procedural provisions cannot constitute a ground for interference by a superior court unless such irregularity or infraction has caused irreparable prejudice to the party and requires to be corrected at that stage itself. Such frequent interference by superior courts at the interlocutory stages tends to defeat the ends of justice instead of serving those ends. It should not be that a man

with enough means is able to keep the law at bay. That would mean the failure of the very system.'

18. The Supreme Court in State of Madhya Pradesh vs. Awadh Kishore Gupta & Ors. 2004 (1) SCC 691 while exercising jurisdiction under Section 482 CrPC, held that it is not permissible for the Court to act as if it was a trial Judge. Even when charge is framed, at that stage, the Court has to only prima facie be satisfied about existence of sufficient ground for proceeding against the accused. For that limited purpose, the Court can evaluate material and documents on records but it cannot appreciate evidence. The Court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not, for convicting the accused.

19. In view of the above discussion, the petition being without any merits, is hereby dismissed. Parties are directed to appear before learned Trial Court on 21.05.2012.

20. Registry is directed to send the copy of the order to learned Trial Court.

PRATIBHA RANI, J May 10, 2012 'st'