BSES RAJDHANI POWER LTD Vs. SUNHERI

JUDGEMENT

(1.) By this petition petitioner seeks leave to appeal against the judgment dated 22nd July, 2010 whereby respondents have been acquitted of the charge under Section 135 read with Section 150 of the Electricity Act, 2003 ("the Act", for short). Brief facts of the case are that the petitioner filed a complaint under Section 151 read with Section 154 of the Act alleging therein that a raiding party comprising of Mani Bhushan Saroj, Assistant Manager, Rafi Mohd., Electrician and Dharam Pal, Recovery Assistant, raided shop no. A-54, G/F Subzi Mandi, Madangir Mkt., New Delhi -110062 of the respondents on 9th July, 2007 at about 02:18 pm when it was noticed that the direct theft of electricity was being committed with the help of a wire by passing the disconnected meter. Joint Inspection Report was prepared at the spot. Respondent no. 2 was registered consumer; whereas respondent no.1 was the user since she was found in the shop at the time of inspection. Total connected load was found to be 3. 710 kw. Load report was also prepared. Meter was seized vide a seizure memo. Photographs of the spot were taken. A compact disk was also prepared. It was alleged that respondents were guilty of committing an offence under Section 135 of the Act. It was further prayed that the civil liability to the tune of Rs. 1,32,331/-be also determined against the respondents.

(2.) Mani Bhushan Saroj was examined as PW1; whereas Binay Kumar, Legal Officer was examined as PW2. No other witness was examined by the petitioner. As regards respondents, four witnesses were examined which included respondent no. 2. After meticulous examination of record, trial court has concluded that the petitioner had failed to prove involvement of respondents in the offence of direct theft of electricity. It has been further observed that the petitioner had failed to prove the inspection report which was relevant for proving the theft. Respondent no. 2 was not even present at the spot. Petitioner had also failed to prove that the respondent no.2 had abated the theft of electricity. Seized articles were not produced in court. Respondents had succeeded in establishing that the shop was under renovation, inasmuch as, walls had been plastered and water was sprinkled and the area was wet, thus, use of electricity was suspicious.

(3.) I have perused the Judgment and trial court record and do not find any perversity in the view taken by the court below. Inspection report has not been proved by the PW1. He has only proved the seizure memo prepared by Hemant Ex.CW2/C. Besides this he has proved the photographs, CD and theft bill as Ex. CW2/C to Ex.CW2/E. As regards CD, he has admitted in his cross-examination that the same was not prepared at the time of inspection nor was shown to the respondents after its preparation. If CD was not prepared at the time of inspection then no reliance can be placed thereon. As regards photographs, the same also remain unproved as photographer had not been produced so as to depose that he had taken the photographs and had prepared the positives. That apart, seized meter or for that matter wire through which direct theft was committed was not produced in Court. Alleged welding machine was also not taken in possession or produced in the court.