MANOJ KUMAR Vs. MANOJ KUMAR

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 6 th 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 20th December, 2007 and the Appellant being in custody for nearly seven months prior thereto cannot be held guilty for Further even on 20th using artificial means of extraction of energy. 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., AIR 1973 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.) LEARNED counsel for the Respondent on the other hand contends that the statutory inspection was conducted under Section 135 of the Act on 20th December, 2007 at 12.30 p.m. which revealed that industrial activity of manufacturing of PVC goods was going on and a total load of 540.215 KW was found to be connected and some machines were found to be in hot condition meaning thereby that the factory was in operation just before the inspection and was stopped at the time of inspection. Further four unauthorized meters were installed inside to deceive the inspection team of the Respondent. During the investigation, the Appellant visited the site and left. The workers working at the site revealed that the Appellant was the owner/user of the premises. PW1 in his testimony has stated that the premises was used by the Appellant and his two brothers Ishwar Singh and Rajbir Singh, who were the co-accused, who caused hindrance in the inspection. PW2 also testified that the Appellant was the user of the premises along with the two other persons at the time of inspection. PW3 also stated about the Appellant using the premises at the time of inspection. Further this fact was also deposed by PW5. Thus all the four witnesses PW1, PW2, PW3 and PW5 stated about the Appellant being the user of the premises. So the Respondent has proved beyond reasonable doubt that the Appellant was a consumer using the premises in question. The plea of alibi taken by the Appellant that on the particular date he was in the Court is unsubstantiated as in the order sheet of the Court, no time is recorded as to when he reached the Court and at what time he left. The Respondent and the complainant has discharged the initial burden of proof under the proviso to Section 135 of the Act and thereafter the burden shifts on the Appellant to prove that he was not using the electricity dishonesty which onus has not been discharged by the Appellant. Reliance is placed on Sushil Sharma vs. BSES Rajdhani Power Ltd. and another, 2011 (1) JCC 665. Further the Appellant could not have been arrested from the spot as the offence committed by the Appellant was a non-cognizable offence. The raising of the issue of wrong calculation of the bills/tariff itself shows that the Appellant was the user of the premises and he was aware of the connected load etc. Further the Appellant led no defence evidence to disprove the finding on the theft bill and the method of calculating the same. The Appellant has already been convicted twice for theft of electricity in complaint case Nos. 432/2006 and 434/2011 and thus no lenient view is required to be taken against the Appellant.