Delhi District Court
Acting Through vs . on 28 September, 2019
IN THE COURT OF MS. REKHA
ADDITIONAL SESSIONS JUDGE, SPECIAL COURT
(ELECTRICITY), CENTRAL DISTRICT, TIS HAZARI COURT,
DELHI
New case No. 327739/16
BSES Yamuna Power Ltd.,
Having its Registered office at:
Shakti Kiran Building, Karkardooma,
Delhi110032.
Acting through
Sh. Jitender Shankar
Sr. Manager (Legal) ..................Complainant Company
Vs.
1. Mohd. Salim (User)
S/o late Abdul Mugni
2. Mohd. Iqbal (R/C & USER)
S/o Mohd. Sammi
At: 2791, Mohalla Niyarain,
G.B. Road, delhi110006 .....................Accused persons
Date of Institution : 20.08.2016
Date of Judgment : 28.09.2019
Final Order : Both accused persons are acquitted.
BYPL Vs. Mohd. Saleem & Anr. 327739/16 Page 1
JUDGEMENT
1). The complainant company i.e. BSES Yamuna Power Ltd. (in short BYPL) has filed the present complaint case under Section 135 and 154(5) of the Electricity Act, 2003 (hereinafter referred as 'Act') against the accused persons praying that accused persons be summoned, tried and punished as per law and for determining the civil liability of the accused persons.
2). The brief facts in narrow compass, relevant and necessary for the disposal of the present case are that the complaint is filed by the complainant company acting through the Sr. ManagerSh. Jitender Shankar who was duly authorized to represent the complainant in this present complaint vide General Power of Attorney/document dated 05.07.2013. It is also stated that as per instruction of G.M. (EnfI), an inspection was carried out on 10.06.2014 at 01.05 P.M. by Joint Inspection BYPL Vs. Mohd. Saleem & Anr. 327739/16 Page 2 Team of the complainant company at premises i.e. 2791, Mohalla Niyarain, G.B. Road, Delhi110006 (hereinafter referred as subject premises) and inspection team comprised of Sh. Dalip KumarAsst. Manager, Sh. Sanjay Arya (DET), Sh. Mohit Jain (L/M) and Sh. Amar Singh (L/M) alongwith the local police staff of P.S.Kamla Market Sh. Anil Kumar (H/C) and with other staff. It is also stated that at the time of inspection, one meter No. 11301451 was found installed at site and the said installed meter was found stopped on load and and the accused were found indulged in the direct theft of electricity by tempring the service cable of another Meter No. 11301460 with two illegal wires found connected (red colour 1.5 mm) two tampered cable & from other side it make bunch and from bunch illegal teflon wire (colour black 1 mm) found connected to the illegal bunch from one side and other side of illegal wire found connected to user load. The total connected load was found to the extent of 17.401 KW for the use of domestic purpose at site and BYPL Vs. Mohd. Saleem & Anr. 327739/16 Page 3 necessary illegal tapping material upto possible extent was removed from the site as material evidence but the said installed meter could not be removed due to resistance created by the accused when the team removing and collecting the evidence user representative started shouted and mob gathered at site and started beating the team badly, the police present at site control the situation. In this regard, the written complaint was also given in the P.S.Kamla Market and an FIR No. 165/14 was also registered against the accused persons. The inspection team prepared the inspection report, load report and seizure memo at site but the accused neither signed and nor received the same and also did not allow the pasting the same on wall of the premises. The member of the inspection team requested to public person to join the inspection proceedings but nobody agreed to same. It is also stated that at the time of inspection, the necessary videographyof the connected load and irregularities was taken by Kishan Pal BYPL Vs. Mohd. Saleem & Anr. 327739/16 Page 4 videographer from Safe Guard in presence of accused but the complete videography could not be done due to resistance and parda system, the connected load visible seen and noted and members of the inspection team also showed their identity card to accused.
It is also stated that accused was abstracting the electricity illegally from the service mains of the complainant. Consequently, an amount of Rs. 2,52,483/ by complainant company with the due date 26.06.2014 was payable by the accused to the complainant company for wrongful abstraction, consumption or use of electricity but the accused has willfully neglected to pay the same. In given fact and circumstances of the case, present complaint case has been filed.
3). The complainant company led the presummoning evidence. Vide order dt. 02.05.2017, the accused persons had BYPL Vs. Mohd. Saleem & Anr. 327739/16 Page 5 been summoned to face the trial for the offence alleged against them.
4) Vide order dated 07.08.2019, a notice U/s 251 Cr.P.C. has been served upon both the accused persons for the offence punishable U/s 135 of Electricity Act, 2003 to which both accused pleaded not guilty and claimed trial.
5). In this case, the complainant company has examined three witnesses, so as to prove its case namely PW01 Sh. Sanjay Kumar Arya, PW2Sh. Jitender Shankar and PW03Sh Amar Singh.
6). PW1Sh. Sanjay Kumar Arya testified that on 10.06.2014 at about 1.05 P.M., they conducted a mass raid alongwith local police staff namely Ram KumarHC and staff. The inspection team consisted of himself, Mr. Dilip Kumar BYPL Vs. Mohd. Saleem & Anr. 327739/16 Page 6 AMO, Mohit JainLineman, Amar Singh and Kishan Videographer. They raided the premises bearing No. 2791, Mohalla Nihariyan, G.B. Road, Delhi06. At the time of inspection, they found two meter at site bearing No. 11301451 and 11301460. The building consisted of ground, first, second and third floor. The meter bearing No. 11301451 was in the name of Mohd. Iqbal. At the time of inspection, this meter i.e. 11301451 was found in stopped condition but the electricity load was running through by illegally tampering the service cable of meter No. 11301460 by two illegal red wires size 1.5 mm sq. each. These red wires were connected to an electrical bunch of wires and from this bunch, two black colour taflon wire of size 1 mm sq. each was found connected to the subject premises. One Mohd. Jabar met at site as a consumer's representative and he told that the subject property belongs to accusedMohd. Iqbal and Mohd.Salim and also told that meter bearing No. 11301451 was in the name of Mohd. Iqbal. The BYPL Vs. Mohd. Saleem & Anr. 327739/16 Page 7 theft of electricity was being committed for first, second and third floor of the subject premises for domestic purpose. Videography of stopped meter, illegal electric wires bunch (mode of electricity theft) and teflon wire was done but videograpy of the connected could not be taken due to the resistance of Mohd. Jabar at site. So, the connected load (17.401 DX/DT was taken into account as per oral statement given by Mohd. Jabar). The illegal teflon wire through which electricity theft was going on was removed upto possible extent but existing meters could not be removed due to the resistance by Mohd. Jabbar. Inspection report already EX. CW2/1, Load Report already Ex. CW2/2, observation report of inspection already Ex. CW2/3 and seizure memo already EX. CW2/4 prepared at site but user's representative namely Mohd. Jabbar refused to signed on them and all exhibits bore his signature at pointA and signatures of Sh. Dilip Kumar at pointB as he was their team leader and signed in his presence. Then, they came BYPL Vs. Mohd. Saleem & Anr. 327739/16 Page 8 out from subject premises for other inspection. Then Mohd. Jabar began shouted and abused the inspection team and mob gathered at site and started beating the enforcement team in the presence of police. The police staffs saved our lives and they reached to the police station. Thereafter, they lodged an FIR.
He also testified that he could identify the case property if shown to him.
At that stage, a small plastic bag with seal on which D. KUMAR was appearing was produced and same was opened and found containing carbon copy of the seizure memo on the letterhead of BYPL and also found containing two small pieces of black colour wires. After seeing the carbon copy of the seizure memo, the witness stated that it was written in his handwriting. After seeing abovesaid two pieces of black colour aluminum wire, the witness stated that it was the wires which were seized at the time of inspection. Abovesaid two pieces of BYPL Vs. Mohd. Saleem & Anr. 327739/16 Page 9 wires were EX. P1(colly).
7). PW2 Sh. Jitender Shankar testified that he was authorized representative of the complainant company duly authorized by the General Power of Attorney executed on 29.08.2006 by the CEO of the company, photocopy of the same which was selfattested was already Ex. CW1/1. Present complaint already EX. CW1/2 had been filed by him which bore his signature at point A. The complaint was true and correct.
8). PW03Amar Singh testified that with Dilip Kumar- Manager, they went to the Kamla Market Police Station. Thereafter, they took police staff and went to raid at Mohalla Nihariyan. Again said-it was mass raid. They inspected the premises No. 2791. They found theft of electricity by puncture of service cable. The illegal wire was removed from there by which theft was going on. There was some resistance/quarrel at site and thereafter they returned to the Kamla Market police station. Sh.Dilip Kumar registered an FIR of BYPL Vs. Mohd. Saleem & Anr. 327739/16 Page 10 quarrel.
9). Thereafter, separate statements U/s 313 Cr.P.C of both accused have been recorded in which they have denied the allegations levelled against them.
Accused Mohd. Salim stated that no alleged inspection was carried out at the subject premises and Mohd. Jabbar was not his representative. He also stated that present complaint was false one.
AccusedMohd. Iqbal stated that no alleged inspection was carried out at the subject premises and a meter was installed in his name from which they were using the electricity. Mohd. Jabbar was not his representative. He also stated that present complaint was false one.
Both accused persons stated that witnesses are the interested witnesses of the complainant company and falsely implicated them in the present case being the officials of the complainant company and they were innocent and they had not committed any alleged offence of electricity. They also stated that the subject premises was a big Katra and large number of families were also residing there and we were using their electricity from CA No. 100301306.
BYPL Vs. Mohd. Saleem & Anr. 327739/16 Page 11
10). I have heard the arguments and perused the material available on record as well as relevant provisions.
In this case, as per the case of the complainant company, PW01 Sh. Sanjay Kumar Arya and PW03Sh. Amar Singh are members of the inspection team.
As per the testimony of PW01Sh. Sanjay Kumar Arya, the inspection team consisted of Sanjay Kumar Arya, Mr. Dilip KumarAMO, Mohit JainLineman and Sh. Amar Singh but as per the testimony of PW03Sh. Amar Singh, with Dilip KumarManager, they went to the Kamla Market Police Station. Thereafter, they took police staff and went to raid at Mohalla Nihariyan.
Here, view of the Court is that there is material contradiction in the statements of PW01 and PW03 regarding presence of alleged members of the alleged inspection team which creates doubts about alleged inspection team which certainly goes against the case of the complainant company. BYPL Vs. Mohd. Saleem & Anr. 327739/16 Page 12 The provision of Regulation 52 (ix) of Delhi Electricity Supply Code and Performance Standards Regulation, 2007, is reproduced as under:
(ix) The report shall be signed by the Authorized Officer and each member of the inspection team and the same must be handed over to the consumer or his/her representative at site immediately under proper receipt. In case of refusal by the consumer or his/her representative to either accept or give a receipt, a copy of inspection report must be pasted at a conspicuous place in/outside the premises and photographed. Simultaneously, the report shall be sent to the consumer under Registered Post.
It is to note here that as per the testimony of PW01 Sh. Sanjay Kumar Arya, Inspection Report already Ex. CW2/1, Load Report already Ex. CW2/2, observation report of inspection already Ex. CW2/3 and Seizure Memo already Ex. CW2/4 prepared at site but user's representative namely Mohd. Janbar refused to sign on them and all exhibits bore his signature at pointA. It is worthwhile to mention here that PW01 did not BYPL Vs. Mohd. Saleem & Anr. 327739/16 Page 13 utter a single word regarding pasting of the Inspection Report.
It is also very very relevant to pen down here that PW03 did not testify regarding any preparation of the report in his examination in chief and only during crossexamination denied the suggestion stated that all the reports were prepared at office, not at site.
It is also worthwhile to mention here that perusal of alleged Inspection Report Ex. CW2/1 (colly) it is found that regarding pasting, nothing has been mentioned.
It is also to note here that no document has been proved on record that the accused persons had been served with the alleged inspection report through registered post.
Thus, complainant company failed to prove that alleged inspection report was ever served upon the accused persons. Therefore, the inspection team has not complied with BYPL Vs. Mohd. Saleem & Anr. 327739/16 Page 14 the abovesaid mandatory regulation which certainly goes against the complainant company.
It is also to note here that as per the testimony of PW01Sh. Sanjay Kumar Arya, one Mohd. Jabar met at site as a consumer's representative and he told that the subject property belonged to accusedMohd. Iqbal and Mohd. Salim.
It is very very relevant to pen down here that PW01 during crossexamination denied the suggestion that Abdul Jabbar was not the representative of the accused persons. He also stated that they did not seize any document which showed that Abdul Jabbar was representative of the accused persons. He also stated that both accused persons were not present at site at the time of inspection and he could not identify the accused persons in the Court that day.
It is worthwhile to mention here that no document has been proved on record that alleged Abdul Jabbar was BYPL Vs. Mohd. Saleem & Anr. 327739/16 Page 15 representative of the accused persons.
In light of above, the complainant company failed to prove that the alleged Abdul Jabbar was representative of the accused persons as alleged.
It is also to note here that as per the testimony of PW01 Sh. Sanjay Kumar Arya, Kishanvideographer also accompanied with the inspection team and videography of stopped meter, illegal electric wires bunch (mode of electricity theft) and teflon wire was done.
It will not be out of place to mention here that PW03 Sh. Amar Singh did not testify regarding any videographer or any videography.
It is very very relavant to pen down here that no alleged Kishanvideographer has been examined by the complainant company. Had alleged videographer examined, BYPL Vs. Mohd. Saleem & Anr. 327739/16 Page 16 the accused persons would have got an opportunity to cross examine him.
Further, It is worthwhile to mention here that no PWs have relied upon alleged Videography/CD in postsummoning evidence.
In light of above, here, view of the Court is that complainant company failed to prove that any videography was conducted on the date of alleged inspection at the subject premises.
In this case, the inspection team has not joined the independent public persons during alleged inspection proceedings.
PW01 did not testify regarding joining of any public person in the alleged inspection proceedings and during cross examination, he stated that they did not make any public BYPL Vs. Mohd. Saleem & Anr. 327739/16 Page 17 witness.
It is relevant to pen down here that PW03 did not testify regarding joining of any public witness in the inspection proceedings.
Further, alleged in the inspection report Ex.CW2/2 also nothing has been mentioned that any efforts were made by the team to join the public persons in the alleged inspection proceedings. Therefore, nonjoining of the public persons during alleged inspection also goes against the complainant company.
It is relevant to pen down here that complainant company examined did not examine any alleged police officials who allegedly accompanied the alleged inspection team for raid. Had, the complainant company examined them, the accused persons definitely would have got the opportunity to crossexamine them.
BYPL Vs. Mohd. Saleem & Anr. 327739/16 Page 18 It is also to note here that as per the testimony of PW1Sh. Sanjay Kumar Arya, at the time of inspection, the electricity load was running through by illegally tampering the service cable of meter No. 11301460 by two illegal red wires size 1.5 mm sq. each and these red wires were connected to an electrical bunch of wires and from this bunch, two black colour taflon wire of size 1 mm sq. each was found connected to the subject premises.
It is very very relevant to pen down here that during crossexamination, he stated that they had not seized the bunch of wires.
It is also to note here that as per the testimony of PW03, the illegal wires were removed from the site by which theft was going on.
Here, it is said that there is contradiction in testimony BYPL Vs. Mohd. Saleem & Anr. 327739/16 Page 19 of star material witnesses regarding alleged removal of alleged illegal wire which creates doubt which certainly goes against the case of the complainant company.
It is very very relevant to pen down here that as per complaint of the complainant company, accused and his representative were present at site.
As per testimony of PW01Sh. Sanjay Kumar Arya, Mohd. Jabarrepresentative of accused was present at the site.
As per complaint of complainant company, installed meter could not be removed due to resistance created by the accused and reports which were prepared at site neither signed nor received by the accused and they were not allowed to paste the same on the wall of the premises.
On the other hand, as per testimony of PW1, existing meter could not be removed due to resistance by Mohd. Jabar. BYPL Vs. Mohd. Saleem & Anr. 327739/16 Page 20 User representative refused to sign the reports which were prepared at site.
More so, PW03 did not testify regarding presence of accused and his representative.
So, in view of the Court, there is material contradiction in the complaint and testimony of PW01 regarding presence of accused which creates doubt and certainly goes against the case of the complainant company.
So far as PW1Jitender Shankar is concerned, he is formal witness and only testified regarding filing of the present complainant case and during crossexamination, he stated that he did not have personal knowledge of the facts of the present case.
In view of abovediscussion, the complainant company has failed to prove the offence alleged against BYPL Vs. Mohd. Saleem & Anr. 327739/16 Page 21 accused persons namely Mohd. Salim and Mohd Iqbal beyond reasonable doubt in the present case. Thus, the accused persons namely Mohd. Salim and Mohd Iqbal are entitled for acquittal. Accordingly, accused persons namely Mohd. Salim and Mohd Iqbal are acquitted for the offence punishable U/s 135 of the Electricity Act, 2003. Bail bond of both accused persons stands canceled and their respective sureties are also discharged. Amount, if any, deposited by the accused persons as a condition for bail or in pursuance to interim order of the court qua the theft assessment bill raised by the complainant company on the basis of alleged inspection dated 10.06.2014 be released by the complainant company after expiry of the period of appeal. It is to note here that bail bonds U/s 437 (A) Cr.P.C. of both accused persons have been furnished and accepted. File be consigned to record room after due compliance.
BYPL Vs. Mohd. Saleem & Anr. 327739/16 Page 22
Digitally
signed by
REKHA
REKHA Date:
2019.09.28
15:26:11
+0530
Announced in open court (Rekha )
on day of 28th September, 2019 ASJ(Special Court)
Electricity/Central
Tis Hazari Courts, Delhi
BYPL Vs. Mohd. Saleem & Anr. 327739/16 Page 23