Delhi High Court

Deepak Chawla vs The State & Ors. on 10 January, 2014

Author: S. Muralidhar

*    IN THE HIGH COURT OF DELHI AT NEW DELHI
R-10
+        CRL.A. 42 of 2008 & CRL.M.B. 81 of 2008 and
                    CRL.M.A. 4435 of 2008

        DEEPAK CHAWLA                                     ..... Appellant
                    Through:              Mr. Shiv Charan Garg, Mr. Imran
                                          Khan & Mr. Shashank Mittal,
                                          Advocates

                            versus

        THE STATE & ORS.                             ..... Respondents
                      Through:            Ms. Aashaa Tiwari, Advocate for
                                          the State.
                                          Mr. Vikram Nandarajog and
                                          Mr. Sushil Jaswal, Advocates for
                                          Respondent No.2-NDPL.

        CORAM: JUSTICE S. MURALIDHAR

                            ORDER

% 10.01.2014

1. This is an appeal filed by Mr. Deepak Chawla against the impugned

judgment dated 15th December 2007 passed by the learned Additional

Sessions Judge ('ASJ'), Special Electricity Court in Complaint Case No.

10 of 2006 convicting the Appellant of the offence under Section 135 of

the Electricity Act, 2003 ('EA'), and against an order of the same date

sentencing him to undergo rigorous imprisonment for three years and

fixing the civil liability to Rs. 3 crores.

2. On 20th May 2005, the complainant North Delhi Power Limited

(NDPL) organised a raid at the premises at Khasra No. 152, Ram Kumar

Ka Gher, Rithala Village, Delhi (hereafter the 'premises in question').

The raiding party was led by Mr. S.K. Das, HOG, Corporate Enforcement

Group. Thereafter, an FIR No. 489 of 2005 was registered at Police

Station Rohini and the investigation of the case was entrusted to Sub

Inspector Rajesh.

3. The case of NDPL was that on 20th May 2005 at 11.30, the raiding

party found that the Appellant, a tenant under one Shri Virender Singh,

was indulging in direct theft of electricity by tapping from NDPL LV

mains by laying a cable for the purposes of his softy making business.

The connected load was 436.782 KW.

4. Sixteen witnesses were examined by the prosecution. The key witness,

Mr. Virender Singh, the supposed owner of the premises was, however,

not examined.

5. PW-9, Shri S.K. Das of NDPL, and PW-10, Mr. Mangal Singh, who

had taken on rent two shops in Khasra No. 152 from Mr. Virender Singh,

are supposed to have informed the IO that all the five shops in Khasra

Nos. 151 and 152 belonged to Mr. Virender Singh. The raiding party

members in the first instance stated that they were informed that the user

of the electricity was one Mr. Rajesh. It was further stated that, during

the course of the investigation, Mr. Rajesh handed over a photocopy of

rent agreement executed between Mr. Virender Singh and Mr. Deepak

Chawla. Thereafter, upon receipt of secret information, the Appellant was

arrested. In his disclosure statement, the Appellant is said to have

admitted that he had taken the premises on rent from Mr. Virender Singh.

A photocopy of the rent agreement was also relied upon by the trial court

to convict the Appellant.

6. This Court has heard the submissions of Mr. Shiv Charan Garg,

learned counsel for the Appellant and Mr. Vikram Nandrajog, learned

counsel for Respondent No. 2-NDPL.

7. In the complaint filed by NDPL before the police, it was stated that the

user of the electricity was Mr. Rajesh. The name of Mr. Deepak Chawla

did not appear at that point of time. The evidence of PW-3 Rajeev Gupta,

Commercial Manager, NDPL who was part of the raiding party, reveals

that there were as many 13 members in the raiding party. He stated: "we

came to know that Sh. Rajesh was in occupation of the said premises". In

other words, the raiding party did not find any one in the premises and

definitely not the Appellant. In his cross-examination, PW-3 stated that

"None of the workers met us at the spot. The workers might have run

away. Vol. But we have not seen any worker running away from the

factory". He also stated that "No inquiry was made to IO from any of the

workers as none of the workers met us at the spot". He added: "I told the

IO that the user of the stolen electricity was Rajesh Kumar s/o Ram

Kumar......... I do not remember how we came to know or who said

Rajesh Kumar is the user".

8. The above evidence shows that the raiding party was itself not directly

aware as to who the user of the premises was. The name of the user was

presumed to be Rajesh without any verification. Importantly, the name of

the Appellant did not feature at the time of the raid. This was confirmed

in the cross-examination of PW-4 Mr. Devi Shahay who was part of the

raiding party. He stated that "it is correct that in the entire inquiry

conducted by us, name of Deepak Chawla was not revealed".

9. It is intriguing that how suddenly a photocopy of the rent agreement

surfaced. This is relevant because the case made out against the Appellant

is based essentially on the fact that there was a rent agreement between

Mr. Deepak Chawla and Mr. Virender Singh, the owner of the premises.

PW-13 Rajesh Kumar simply states that the raided premises was owned

by Mr. Virender Singh s/o Ram Singh although he "cannot tell how the

raided property owned by Virender Singh". He further states that "I do

not know the person to whom Virender Singh rented out the property".

Interestingly, he did not disclose as to how he came into possession of the

rent agreement. He simply states that "The Police has taken from me the

photocopy of the rent agreement of the premises which was raided by

NDPL officials on 3.6.05". Interestingly, Rajesh admits in his cross-

examination that he does not know how to read and write and therefore is

unable to state whether the agreement produced in Court was the same

which was handed over by him to the IO.

10. In the considered view of the Court, the above rent agreement cannot

be relied upon for more than one reason. Apart from the fact that Rajesh

himself for some reason did not mention in the first instance the fact that

the premises was leased to the Appellant by Mr. Virender Singh, he states

in his cross-examination that "it is also correct that the rent agreement

which I had given to the police was not executed in my presence". He

states as under:

"The photocopy of rent agreement was given to me by Sunil nephew of Virender Singh after great persuasion and many visits to the house of Virender Singh as I was being harassed by the police. It is correct that I do not know where the original of the said photocopy is".

The above statement shows that it is only as a result of police harassment

that Rajesh purportedly procured a photocopy of the rent agreement from

Mr. Virender Singh's nephew.

11. Strangely, Mr. Virender Singh himself was never examined although

there was no impediment to the police examining him. He was in judicial

custody in connection with some other case. The Notary Public, who was

examined as PW-7, admitted that although every document notarized by

him was supposed to be entered in a register, this particular document,

i.e., the rent agreement was not entered in the register. He then states as

under:

"I cannot identify witness Roshan Lal or the parties who has signed before me. Vol. Since it is a matter of two and a half years ago and even in the matter of a week ago also it is not possible to identify the parties. I do not know who presented Ex.PW7/1 before me. It is also correct that I have not verified the identity of the parties before notarizing the document. The person who has signed before me as Virender Singh must be Virender Singh".

Clearly, therefore, even the evidence of the Notary Public is not helpful in

determining the genuineness of the so called rent agreement.

12. Smt. Guddi, wife of Mr. Virender Singh, was examined as PW-12.

She did not support the case of the prosecution and was declared hostile.

She stood firm that she did not know anything about the ownership

papers of Khasra No. 152. She also stated as under:

"I also cannot say that the paper, the police taken into possession on 8.7.05 was a rent agreement between my husband and Deepak Chawla for letting out one shed area of which is around 150 sq. yds. out of the Khasra No.152, situated in old Lal Dora Village, Rithala".

13. In light of the above evidence, it was unsafe for the trial court to have

proceeded on the basis of the rent agreement which was the principal

piece of evidence put forth by the prosecution to connect the Appellant

with the premises in question.

14. The retracted disclosure statement of the Appellant could not have

been relied upon in the absence of any substantive piece of evidence

connecting him with the premises in question.

15. In the circumstances, this Court is of the view that the learned trial

court erred in returning a finding of guilt against the Appellant for the

offence under Section 135 of the EA. The impugned judgment dated 15th

December 2007 of the learned ASJ is accordingly set aside. Consequently

the order, determining the civil liability, as well as the order on sentence