Vijay Sunar vs North Delhi Power Limited
2014 Latest Caselaw 179 Del

 *   IN THE HIGH COURT OF DELHI AT NEW DELHI
 R-5
 +           CRIMINAL APPEAL No. 720 of 2007

        VIJAY SUNAR                                           ..... Appellant
                                 Through: Mr. O.S. Soran, Advocate.


                                 versus


        NORTH DELHI POWER LIMITED                 .... Respondent
                     Through: Mr. Vikram Nandrajog with
                              Mr. Sushil Jaswal and Mr. Sheetesh
                              Khanna, Advocates.

                                 And

 R-8
 +              CRIMINAL APPEAL No. 23 of 2008

        NORTH DELHI POWER LIMITED                 .... Appellant
                     Through: Mr. Vikram Nandrajog with
                              Mr. Sushil Jaswal and Mr. Sheetesh
                              Khanna, Advocates.

                                 versus

        VIJAY SUNAR                                        ..... Respondent
                                Through: Mr. O.S. Soran, Advocate.

        CORAM: JUSTICE S. MURALIDHAR

                                 ORDER

% 09.01.2014

1. Criminal Appeal No. 720 of 2007 filed by Mr. Vijay Sunar is directed

against the impugned judgment dated 11th October 2007 and the order of

sentence dated 17th October 2007 passed by the learned Additional

Sessions Judge ('ASJ') [Electricity] in Complaint Case No. 34 of 2006

convicting the Appellant of the offence under Section 135 of the

Electricity Act, 2003 ('EA'), sentencing him to undergo rigorous

imprisonment for three years and determining the civil liability to Rs.

6,57,770.

2. Criminal Appeal No. 23 of 2008 by North Delhi Power Limited

('NDPL') is directed against the impugned judgement dated 11th October

2007 to the extent that it limits civil liability of Mr. Vijay Sunar to Rs.

6,55,770 under Section 154 (5) of the EA.

3. The complaint by NDPL against Mr. Vijay Sunar was that on 6th

January 2005 a raiding party consisting of Mr. Narender Kumar, Junior

Engineer (Enforcement) NW, Mr. Bharat Singh, Junior Engineer

(Enforcement) NW, Mr. Mukesh Kumar, Assistant Manager

(Enforcement) NW, Mr. Krishan Kumar, Officer (Enforcement) NW and

Mr. S. Zaidi, Officer (Enforcement) NW was formed and a raid was

conducted at Plot No. 1/59, Budh Vihar, Phase-I, Delhi. The case is that

Mr. Vijay Sunar was found indulging in direct theft of electricity by using

1 No. two core PVC cable and 2 Nos. single core PVC wires of different

colours directly from the NDPL LV mains. No meter was found at the

site. The complaint states that "it was stated at the site that the accused is

the user of the said load illegally."

4. During the trial, Mr. V.P. Sharma, Manager (Enforcement), NDPL was

examined as PW-1, Mr. Mukesh Kumar Gupta, Assistant Manager

(Enforcement), NDPL as PW-2, Mr. Ashok Kumar Gupta, authorized

representative of NDPL as PW-3. Mr. Vijay Sunar himself was examined

as DW-1.

5. The case of NDPL against Mr. Vijay Sunar is that at the premises No.

1/59, Budh Vihar, Phase-I, the raiding party found that the plastic dana

was being manufactured by using extruders (gullas) by using power by

tapping directly from NDPL LV mains. PW-1 in his evidence stated as

under:

"One Surender met us at the site. He told us that the said factory belonged to Vijay Sunar. We prepared inspection report Ex.PW-1/1, removed the illegal wires and prepared seizure memo. We asked Surender to sign the inspection report but he refused. We pasted a copy of inspection report on the wall of the premises."

6. In his cross-examination he stated:

"When the said Surender had refused to sign the inspection report, I did not lodge a police report against him. He had refused to disclose his address. We had asked Surender to give some document to show that the factory belonged to Vijay Sunar but he told us that Vijay Sunar was not present (in the factory and that he (Surender) did not have any such document in his possession. We did not verify from any local body such as DDA and/or MCD that the premises in question were owned by Vijay Sunar."

7. The significant aspect of the matter is that Mr. Surender was not

examined as a witness.

8. As regards PW-2, Mr. Mukesh Kumar Gupta, he too confirmed that

Mr. Surender refused to sign the inspection when asked. He stated:

"We had asked Surender to give some document to show that the premises belonged to Vijay Sunar. We did not give any written notice to him. We did not conduct investigation to show that the premises belonged to Vijay Sunar."

9. Importantly he stated:

"It is correct that in the photographs nowhere it has been shown that the premises belonged to Vijay Sunar."

10. In his evidence, DW-1, Mr. Vijay Sunar, stated that he resides at

House No. 340, VPO Pooth Kalan, New Delhi and used to run a plastic

dana factory from his house. He had an electric meter installed at his

house in the year 1999. However, pursuant to a raid conducted by the

Delhi Vidyut Board ('DVB') officials, a bill for an amount of Rs.

3,78,000 was raised and in a Permanent Lok Adalat the said bill was

revised to Rs. 2,71,000. He thereafter filed a civil suit. In terms of the

order of the Civil Court, he deposited Rs. 1,35,000 and the said suit was

still pending. He further stated that NDPL again raised a further bill of Rs.

2,93,000 after including the unpaid amount of the earlier bill. Thereafter,

the electricity connection was disconnected by NDPL on account of the

non-payment of the bill amount.

11. In his cross-examination, Mr. Sunar admitted that there were three

theft cases of electricity pending against him. The following question and

the answer thereto by Mr. Sunar are relevant:

"Q. I suggest it to you that the officers of NDPL had conducted a raid at premises No. O-1/59, Budh Vihar, Delhi on 6th January 2005, 24th March 2005 and 26th May 2005 and you were found indulging in direct theft of electricity?

Ans. I even do not know about the location of Budh Vihar. It is wrong to suggest that after the disconnection of the electricity at my residence, I shifted my plastic dana factory at premises bearing No. O-1/59, Budh Vihar, Delhi and started running the same by committing direct theft of electricity. There is distance of about two kilometres between Village Pooth Kalan and Budh Vihar. It is wrong to suggest that Budh Vihar is at the boundary of Village Pooth Kalan. It is wrong to suggest that I am deposing falsely."

12. In the impugned judgment, the learned ASJ posed the issue as under:

"Whether the Complainant has been able to prove that it was the accused and the accused alone and nobody else who was found running a plastic dana factory in the premises in question at the time of the raid on 6th January 2005."

13. On an analysis of the evidence, the learned ASJ observed that Mr.

Vijay Sunar had tried "to hide a very important fact from this Court" by

making contradictory statements by stating at one instance that there was

a distance of two kilometres between Village Pooth Kalan and Budh

Vihar and at another instance stating that he did not know about the

location of Budh Vihar.

14. In the considered view of this Court, the burden was on NDPL to

show that Mr. Sunar was connected with the premises which were raided.

The fact of the matter is that the only way to connect Mr. Sunar to the

premises was the evidence of Mr. Surender who supposedly was present

in the premises when the raid took place. However, for reasons best

known to NDPL, Mr. Surender was not examined as a witness. There is

no document on record to show Mr. Sunar either owned the premises or

was at any time in possession thereof. The photographs taken at the time

of the raid do not show his presence in the premises. Merely because Mr.

Sunar was running the factory for manufacturing the plastic dana at his

residence in Village Pooth Kalan and the same activity was found to be

taking place in the premises in Budh Vihar where the raid was conducted

cannot ipso facto mean that it was Mr. Sunar who was running the said

plastic dana factory at Budh Vihar.

15. The learned ASJ erred in basing his conclusions on the statement of

Mr. Sunar under Section 313 CrPC and in his evidence as DW-1. The

complaint was by NDPL. The burden was on NDPL to show that the site

which was raided either belonged to or was in the possession of Mr. Sunar

and that he was the person committing the theft of electricity.

16. The learned ASJ has in the impugned order made the following

observations, which are in the nature of surmises and conjectures:

"persons indulging in illegal acts including theft of electricity always try

their best to hide/conceal their identity and do not leave any document in

the premises. They always work in a clandestine manner. They do not

give any name to their business. They do not enter into rent agreement. If

the premises are not allotted by any government agency including MCD

and DDA, it becomes very difficult to collect ownership documents or

tenancy documents." It is not for the Court to supply the missing links in

the case of the complainant in a criminal case. Further, the following

reasoning of the learned ASJ to the excuse of the non-examination of Mr.

Surender, in the considered view of the Court, is untenable in law:

"It is not the case of the accused that no such Surender was found present at the site or that the said Surender is an imaginary person or is the creation of the mind of the members of the raiding party themselves. Therefore, in the facts and circumstances of the case discussed above, the non-examination of the said Surender in the court is not fatal to the case of the Complainant."

17. The Court is unable to agree with the learned ASJ that failure to

examine Mr. Surender as witness was not fatal to the case of NDPL. He

was the person who supposedly informed the officials of NDPL that the

premises belonged to Mr. Sunar. None of the members of the raiding

party had any personal knowledge of that fact. They also did not gather

any documents to corroborate that statement. The circumstantial evidence

that the learned ASJ speaks about in the impugned judgment as emerging

from the evidence of PW-1 and PW-2, does not prove beyond reasonable

doubt that it was Mr. Sunar who either owned or possessed the premises

which was raided and, importantly, that he was seen committing the theft

of electricity.

18. Mr. Vikram Nandrajog, learned counsel for NDPL, submitted that

since Mr. Sunar was unable to make good the case put forth by him as

DW-1 to the effect that he had a metered connection at his premises in

Village Pooth Kalan premises, an adverse inference that he was setting up

a false case should be drawn against him. In the considered view of the

Court, the above submission is without merit. NDPL will have to lead

positive evidence to prove the guilt of Mr. Sunar for the offence under

Section 135 of the EA. It will not suffice to show that Mr. Sunar was

unable to prove his defence. Even assuming that Mr. Sunar was not able

to establish his case on a preponderance of probabilities, the burden on

NDPL to prove his guilt for the offence of direct theft of electricity

beyond reasonable doubt remained and was required to be discharged.

19. For the above reasons, the impugned judgment dated 11th October

2007 of the learned ASJ is hereby set aside. The order determining the

civil liability, as well as the order on sentence dated 17th October 2007 are

also set aside. The personal bond is hereby discharged.

20. Criminal Appeal No. 720 of 2007 is allowed in the above terms.

Criminal Appeal No. 23 of 2008 is dismissed as infructuous.

S. MURALIDHAR, J JANUARY 9, 2014 Rk