MANOJ KUMAR Vs. BSES RAJDHANI POWER LTD

JUDGEMENT

(1.) By the present petition the Appellant impugns the judgment dated 18th February, 2012 whereby the Appellant was convicted for offence under Section 135 of Electricity Act, 2003 (in short the Act) and the order dated 6th March, 2012 whereby he was directed to undergo Rigorous Imprisonment for a period of three years and to pay a fine of Rs.6,30,43,524/- and in default of payment of fine to undergo simple imprisonment for a period of nine months. In terms of proviso to sub-Section (1) to Section 35 of the Act the Appellant was debarred from getting any supply of electricity for a period of one year and further directed to pay civil liability assessed at Rs.2,10,14,509/- which was to be payable with interest at the rate of 6% per annum from the due date of bill, that is, 7th January, 2008 till its realization.

(2.) Learned counsel for the Appellant contends that the Appellant along with the two other accused was prosecuted and on the same evidence they have been acquitted however, the Appellant has been convicted. Admittedly it is not the case of the Respondent that the Respondent was supplying electricity to the Appellant and thus to cover the Appellant in the definition of "consumer", the Respondent has to prove beyond reasonable doubt that the premises which was allegedly connected for the purpose of receiving electricity belonged to the Appellant. There is no material evidence adduced by the Respondent to prove that the premises in question belonged to the Appellant. The Respondent has neither proved the ownership nor possession of the Appellant for the said premises. The Appellant suggested to the witnesses that the name of the user of the premises was Man Singh and the Videography also showed name of Man Singh affixed. Despite the same, the plea of the Appellant was not considered. Admittedly, the Appellant was in judicial custody from 27th May, 2007 to 19th December, 2007, which fact has been proved by the Appellant by examining DW2, warden of the Central jail, Rohini and the report of the Jail Superintendent Ex.DW2/A. The alleged inspection was conducted on 20 th December, 2007 and the Appellant being in custody for nearly seven months prior thereto cannot be held guilty for using artificial means of extraction of energy. Further even on 20th December, 2007 the Appellant was present before the Court of J.R. Aryan, the learned Additional Sessions Judge in Complaint Case No. 235/2006 titled as BSES vs. Jai Kishan and others and cross-examination of one witness was recorded and thus the Appellant remained in the court upto 4.00 p.m. which fact has been proved by DW1 the record clerk. Thus the version of the prosecution witnesses that they saw the Appellant at the spot is false and liable to be rejected. The finding of the learned Trial Court that PW1, PW2 and PW3 identified the accused is contrary to the evidence on record. It is well settled that when two views are possible then the view in favour of the accused has to be accepted. (Kali Ram vs. State of H.P., 1973 AIR(SC) 2773). The presence of Appellant is also not proved by the videography as the Appellant has not been seen in the videography. Further PW3 admitted in the cross-examination that the lock of the premises was broken and nobody was found during inspection. Even assuming from the statement of the witnesses that the presence of the Appellant is proved at the spot, the same would not prove that the premises belong to the Appellant herein and thus he would not fall within the definition of "consumer" as defined in the Act. Further the version of PW5 that they made inquiries from the persons who disclosed that Manoj was the user of the inspected premises is not admissible in evidence as the same is hearsay evidence. The said witnesses have not been examined before the Court.

(3.) The allegation of existence of alleged load of 540.215 KW by direct theft of electricity is wholly incorrect. The approximate capacity of the transformer and the electricity line in the colony itself was 250 KVA and thus the same was not in a position to bear the huge load of 540 KW, that is, 635 KVA which was allegedly only used by the Appellant. In view of this excess consumption from the house of the Appellant itself the transformer would have burnt. Further the cable allegedly being used for committing the direct theft of electricity was neither seized nor produced before the learned trial court hence the contention that the alleged cable was being used is not proved before the learned Trial Court. There are material contradictions in the statements of PW1, PW2 and PW3 with regard to number of machines working at the time of inspection. The alleged inspection report was not prepared at the site. No public witness was joined with the search and seizure as is mandatory under Section 135 of the Act. In the alternative, it is submitted that even if this Court comes to the conclusion that the Appellant is guilty of offence under Section 135 of the Act, the civil liability and the fine as computed by the learned Trial Court is wholly unjustified. The bill relied upon by the learned Trial Court for quantifying the amount of civil liability was not tendered in evidence by the Respondent and thus the same has not been proved. Since the Appellant was in custody from 27th May, 2007 to 19th December, 2007, he should not be asked to pay the fine or civil liability for the said period. The formula given in the Delhi Electricity Supply Code and Performance Standard Regulation, 2007 for raising of theft bill is not a guiding principle. There is no provision of law available to the special court to follow for the purpose of determination of civil liability under Section 154 (5) of the Act. The fine under Section 135 of the Act has to be determined on the basis of financial gain by the consumer on account of alleged theft. Since the Appellant was in custody, there was no financial gain to him. Further the financial gain has not been proved before the learned trial court. Thus a lenient view be taken in the matter.