Delhi District Court
Bypl vs . Vigar Khan & Ors. on 11 February, 2013
C.C. No. 509/07
BYPL Vs. Vigar Khan & ors.
IN THE COURT OF SH. ARUN KUMAR ARYA
ADDITIONAL SESSIONS JUDGE, SPECIAL COURT, (ELECTRICITY),
TIS HAZARI COURT, DELHI
Complaint instituted on : 30.11.2006
Judgment reserved on : 27.02.2013
Judgment pronounced on : 11.03.2013
Complaint Case No : 509/07
Unique Case ID No. : 02402R0846012008
BSES Yamuna Power Limited
A Company Duly Incorporated Under
The Companies Act, 1956
Having its registered office at:
Shakti Kiran Building, Karkardooma,
Delhi110032
Acting through its Authorized Officer,
Shri Jitender Shankar
..............Complainant
Versus
1: Vigar Khan
R/o WR 60, Gali No.10, Ground Floor,
Vishkarma Mandir, Anand Parbat,
Industrial Area, Delhi
2: Jamil Khan
R/o WR 60, Gali No.10, Ground Floor,
Vishkarma Mandir, Anand Parbat,
Industrial Area, Delhi ................Accused Persons
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C.C. No. 509/07
BYPL Vs. Vigar Khan & ors.
J U D G M E N T
1. That the complainant is a company incorporated under the Companies Act, 1956 (to be referred as "company" hereinafter) having its registered office at Shakti Kiran Building, Karkardooma, Delhi 110092 and having its branch office at different places in Delhi. The company is the licensee for supply of electricity in major parts of Delhi including the area of the accused. The present case was filed through Sh. Jitender Shakar, Authorized Officer. Later on Sh. C.B. Sharma and thereafter Sh. Rajeev Ranjan was substituted as authorized representative by order of this court.
2. A complaint under section 135/138 read with Section 151 of the Electricity Act, 2003 (to be referred as "Act" hereinafter) was filed against the accused by the company with a prayer for determining the civil liability against the accused u/s 154 (v) of this Act.
3. As per this complaint, on 03.06.2006 at about 03:40PM, a joint inspection team comprising of (i) Sh. S.P. Singh (Assistant Manager), (ii) Sh. Prashant Prem (GET), (iii) Sh. Rajinder Singh (Assistant Manager), (iv) Sh. Likhi Ram (Senior Engineer) and (v) Sh. Parveen Kumar inspected the premises of Vigar Khan and Jamil Khan at WR 60, Gali No.10, Ground Floor, Vishkarma Mandir, Anand Parbat, Industrial Area, Delhi. During the course of inspection both Page 2 of 13 C.C. No. 509/07 BYPL Vs. Vigar Khan & ors.
accused persons were indulging in direct theft of electricity by tapping BSES LV mains and no meter was found at site. The total connected load which was illegally used by the accused persons for industrial purpose was assessed by the inspection team as 7.596 KW/IX/DX.
4. The officials of the company took photographs, prepared video of the entire connected load by digital camera and the same was filed with the complaint. That during the course of inspection inspecting team seized 2 core service cable 7 mtr., 2X10MM Sq. SWG of black colour from the spot and seizure memo was prepared at the spot. Subsequently, theft assessment bill in the sum of Rs. 2,99,699/ was raised against the accused persons by the company. Hence, the present complaint was filed against the both the accused persons. Accused no. 2 (Jamil Khan) stated to have already expired before the inspection dated 03.06.2006.
5. The accused was summoned U/S 135 of the Electricity Act 2003 by ld. predecessor of this Court by order dated 09.10.2007 after recording the pre - summoning evidence. A notice u/s 251 Cr.PC was also framed against accused no. 1 (Vigar Khan) by ld. predecessor of this Court on 03.02.2009 to which accused no. 1 pleaded not guilty and claimed trial.
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BYPL Vs. Vigar Khan & ors.
6. Complainant in support of its case examined 5 witnesses namely PW1 Sh. Rajeev Ranjan (Legal Officer), PW2 Sh. S.P. Singh (DGM), PW 3 Sh. Likhi Ram (Senior Manager), PW 4 Sh. Sarvesh Kumar (Assistant Vice President) and Sh. Rajendra Singh (DGM).
PW 1 Sh. Rajeev Ranjan deposed that the present complaint Ex. CW 1 / 2 was filed by Sh. Jitender Shankar. He was authorized vide letter of authority in his favour Ex. CW 1 / A1. On the basis of inspection report and load report, enforcement department of the company prepared the theft bill for an amount of Rs. 2,99,699/ which is Ex. CW2/E. PW2 Sh. S.P. Singh, DGM of company deposed that on 03.06.2006 a raiding team comprising of himself, Sh. Rajinder Singh (Assistant Manager), Sh. Likhi Ram (Senior Engineer), Sh. Parshant Prem (GET) and Sh. Parveen Kumar (Lineman) conducted the inspection bearing no. WR 60, Gali no. 10, Vishkarma Mandir, Industrial Area, Anand Parbat, Delhi. During the course of inspection the accused was found dishonestly indulging in direct theft of electricity from LV mains of the complainant company through illegal wires. This witness did not turn up for cross examination, till the closure of company's evidence.
PW 3 Sh. Likhi Ram, Senior Manager of company deposed that on 03.06.2006 a raiding team comprising of himself, Sh. Rajinder Page 4 of 13 C.C. No. 509/07 BYPL Vs. Vigar Khan & ors.
Singh (Assistant Manager), Sh. S.P. Singh (DGM Enforcement), Sh. Parshant Prem (GET) and Sh. Parveen Kumar (Lineman) conducted the inspection bearing no. WR 60, Gali no. 10, Vishkarma Mandir, Industrial Area, Anand Parbat, Delhi. During the course of inspection the accused was found dishonestly indulging in direct theft of electricity from LV mains of the complainant company through illegal wires. The total connected load which was illegally used by the accused was assessed by the inspection team as 7.596 KW was found for industrial purpose. The reports i.e. inspection report (Ex. CW 2/A) and load report (Ex.CW2/B) were prepared at site by the member of the raiding team. Sh. Sarvesh Kumar, Manager O & M was called at site by Sh. S.P. Singh to seize the illegal material which were being used for the purpose of theft of electricity, seizure memo was also prepared at site (Ex. CW 2/D).
Raiding team members took photographs and prepared video of the entire connected load by digital camera. The photographs and compact disc (CD) (already Ex. CW 2/C) was prepared by the member of the raiding team showing the irregularities and connected load found at the spot.
PW 4 Sh. Sarvesh Kumar, Assistant Vice President deposed that on 03.06.2006, he received a telephonic call at about 03:45PM from Sh. S.P. Singh. He reached the premises in question at Page 5 of 13 C.C. No. 509/07 BYPL Vs. Vigar Khan & ors.
about 4PM and member of the raiding team were removing illegal wires i.e two core black colour wire about 7mtr. long. Thereafter, seizure memo (Ex. CW 2/D) was prepared by the members of the raiding team which bore his signature at point "A".
PW 5 Sh. Rajender Singh, DGM of company deposed that on 03.06.2006 he received a telephonic call from Sh. S.P.Singh (DGM,Enf.) that raided party came at the premises bearing no. WR 60, Gali no. 10, Vishkarma Mandir, Industrial Area, Anand Parbat, Delhi and he asked me to came at the premises. He reached at the premises in question and found that two persons were present at the site and disclosed their names as Vigar Khan and Jameel Khan. It was further found that no meter was found at site and accused was found indulging in direct theft of electricity from LV mains of the complainant company through illegal wires. Necessary photographs of the connected load and illegal wire and preparation of inspection report as well as seizure memo were taken at site. The reports i.e. inspection report and load report were prepared at site by the member of the raiding team. The case property i.e. black colour 2 core wire was seized by him and seizure memo was prepared accordingly (Ex. CW 2/D) which bore his signature at point X1.
In his statement recorded u/s 313 Cr.P.C., accused no. 1 Page 6 of 13 C.C. No. 509/07 BYPL Vs. Vigar Khan & ors.
(Vigar Khan) has denied the allegation and he pleaded ignorance about the raid conducted in the premises.
7. Ld. Counsel for the accused has argued that accused is implicated purely on the basis of hearsay evidence.
In cross examination of PW 3 Sh. Likhi Ram deposed that the police personnel assisted them but their signatures were not obtained by inspection team. He further admitted that no public witness signed the entire inspection report.
8. During cross examination of PW 4 he stated that other industries also situated near the premises. PW 4 and PW 5 admitted that they did not call any public persons to join the proceedings at the time of sealing of case property.
It was urged that company had failed to prove its case so, accused was entitled to be acquitted in this case.
9. Per contra, counsel for complainant has argued that accused committed direct theft of electricity from LV mains of the complainant company through illegal wires. That as per deposition of PW 3 Sh. Lkhi Ram, PW 4 Sh. Sarvesh Kumar and PW 5 Sh. Rajendra Singh, the company has proved its case against the accused beyond reasonable doubt. Accordingly, accused is liable to be convicted in this case.
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BYPL Vs. Vigar Khan & ors.
10. I have gone through the ocular & documentary evidence adduced on record and arguments advanced at bar.
11. Witnesses Sh. Prashant Prem and Sh. Parveen Kumar of the raiding team cited in the list of witnesses were not examined by the company.
The name of accused is given in the inspection report as the user of the electricity. In order to connect the accused with the offence, reliable evidence is required to be led by the company which show that the accused was connected with the premises in which the theft was being committed. No public persons who were present at the site have been cited or examined as a witness. No other independent witness has been examined in this case to prove that the accused was committing the theft. No inquiry is made as to who was the owner or in the occupation of the premises in question. It is on record that the name of the accused has been written in the inspection report at the instance of the persons present at the spot. This piece of evidence can simply be termed as "hearsay evidence".
As per Regulation 25 (vii) Delhi Electricity Regulatory Commission (Performance Standards Metering and Billing) Regulations, 2002, the report must be signed by each member of the joint team and as per Regulation 52 (ix) of Delhi Electricity Supply Code and Page 8 of 13 C.C. No. 509/07 BYPL Vs. Vigar Khan & ors.
Performance Standards Regulations 2007 "the report shall be signed by the Authorized Officer and each member of the inspecting team". The non signing of the inspection report by all the member of raiding team casts over the inspection report as the inspection report is signed by four members of the raiding team out of total five members.
PW 2 did not turn up for cross examination after his examination in - chief was recorded. So no evidentiary value can be attached to his statement. Cross examination of PW 3 and PW 4 are totally contradictory as PW 3 stated in his cross examination that public persons refuse to joined the inspection but PW 4 denied these facts in his cross examination.
PW 5 has stated that the persons present at site did not allow the members of raiding team to paste the entire reports on the wall of the premises. It does not appeal to common sense and logic that when they were allowed to take photographs then how those persons could resist the pasting of the reports at the site and that too, in presence of police.
This inspection was made on 03.06.2006 however the complaint against the accused was filed on 30.11.2006. As per clause 52 (vii) Delhi Electricity Supply Code and Performance Standards Regulations 2007, the case against the consumer in designated Special Page 9 of 13 C.C. No. 509/07 BYPL Vs. Vigar Khan & ors.
Court shall be filed within 2 days from the date of inspection and copy of filing shall be served on the consumer under proper receipt within 2 days of its such filing. The delay in filing of complaint in stipulated time, gives ample time to the company to make improvement and embellishment in the complaint. This can be termed as un explained delay in filing the complaint which goes to the root and credibility of the case.
12. The authorized officer who had disconnected the electricity supply of the consumer is under an obligation to file a complaint of theft of electricity with the concerned police station having jurisdiction.
As per proviso of Section 135 Electricity Act, which reads as under: Provided further that such officer of the licensee or supplier, as the case may be, shall lodge a complaint in writing relating to the commission of such offence in police station having jurisdiction within twenty - four hours from the time of such disconnection. In the present case, although it is alleged that police was assisting them, despite this no complaint was made to the police as stipulated above.
As per Regulation 25 (i) of the Delhi Electricity Regulatory Commission (Performance Standards Metering and Billing) Regulations, Page 10 of 13 C.C. No. 509/07 BYPL Vs. Vigar Khan & ors.
2002. "The inspection team shall carry a written authority signed by designated officer of the licensee". In the present case no such written authority was carried by the inspecting team while making the raid on 03.06.2006 and no such authority was placed on record either.
As per clause 52 (i) Delhi Electricity Supply Code and Performance Standards Regulations 2007. The licensee shall publish the list of the Authorised Officers of various districts, prominently in all the District Offices. There is nothing on record to show as to who was the Authorized Officer competent to make this inspection.
13. The Electricity Act, 2003 is a special Act enacted in order to create special courts competent to take cognizance of the offences committed under this Act. A special Act created always have special measure to checkmate its misuse by the investigating agencies. In exercise of powers conferred by Section 50 of the Electricity Act, 2003, read with Section 57, 86 and 181 of the said Act, Delhi Electricity Regulatory Commission has formulated the Delhi Electricity Supply Code and Performance Standards Regulations, 2007. Section 57 of Electricity Act 2003, relates to consumer protection and Standards of Performance of Licensee and if, a licensee fails to meet the standards specified than it shall be liable to pay compensation to the affected person along with penalty to be determined by the Page 11 of 13 C.C. No. 509/07 BYPL Vs. Vigar Khan & ors.
Appropriate Commission.
14. These regulations have statutory force and as per its chapter VII, a procedure was laid down for booking the cases of theft of electricity, to protect the consumer. And if these regulations are not complied while booking a case of theft than it creates a serious doubt on the truthfulness of the inspection report.
15. Although conviction can be based on the testimony of a single witness which seems trustworthy and reliable. In the present case, there are material contradictions in the testimonies of all the witnesses as already discussed herein before, so, it shall be highly unsafe to rely on their testimonies. More pertinently, the non adherence to the statutory regulations by the members of the inspecting team while booking a case of theft as discussed herein above creates a serious doubt on the inspection report dated 03.06.2006.
16. As per the criminal jurisprudence, the prosecution has to prove its case beyond reasonable doubt and has to travel a long distance between 'may be true' and 'must be true' by legal, reliable and unimpeachable evidence before an accused can be convicted. The company has failed to travel this distance.
In view of the foregoing reasons, company has failed to Page 12 of 13 C.C. No. 509/07 BYPL Vs. Vigar Khan & ors.
prove its case against the accused beyond reasonable doubt, he is accordingly acquitted. Bail bond of the accused is canceled and surety is discharged. Amount, if any, deposited by the accused as a condition for bail be released by the company after expiry of period of appeal.
File be consigned to record room.
(Arun Kumar Arya) ASJ/Spl. Court (Elect) Tis Hazari/Delhi/11.03.2013 Announced in the open court Page 13 of 13