Delhi District Court
Bypl vs . Man Mohan Sharma on 11 July, 2013
CC No.205/07
BYPL VS. Man Mohan Sharma
IN THE COURT OF SHRI ARUN KUMAR ARYA,
ADDITIONAL SESSIONS JUDGE, SPECIAL COURT
(ELECTRICITY), TIS HAZARI COURT, DELHI
CC No.205/07
Unique case ID No.02402R0049642009
BSES Yamuna Power Ltd.
Having its Registered office at
Shakti Kiran Building,
Karkardooma, Delhi-110032
(Through its authorized representative
Sh. Jitender Shankar) ............ Complainant
Through : Sh. Rajeev Ranjan, AR with Ld.
Counsel for the company.
Vs.
Man Mohan Sharma
6629/1, Gali Tank Wali,
Ahata, Kidara, Paharganj,
New Delhi. ................ Accused
Through : Ms.Chitramal, Adv
Date of Institution : 06.02.2007
Judgment reserved on : 01.07.2013
Date of Judgment : 11.07.2013
JUDGMENT
1. The complainant is a company incorporated under the Companies Act, 1956 (to be referred as "company"
Page 1 CC No.205/07 BYPL VS. Man Mohan Sharma hereinafter) having its registered office at Shakti Kiran Building, Karkardooma, Delhi - 110032 and its branches are located at different places in Delhi. The company is the licensee for supply of electricity in major parts of Delhi, including the premises bearing no. 6629/1, Gali Tank Wali, Ahata, Kidara, Pahar Ganj, New Delhi where the offence has been allegedly committed by the accused. The present case was filed through Sh. Jitender Shankar, Authorized Officer. Later on, Sh. C.B.Sharma and Sh. Rajeev Ranjan were substituted as authorized representative by order of this court.
2. As per complaint, on 29.06.2006 a team comprising of Sh. Ram Pher ( Deputy Manager ) and Sh. Kadeem Ahmad ( GET ) conducted an inspection / raid at premises bearing no. 6629/1, Gali Tank Wali, Ahata, Kidara, Pahar Ganj, New Delhi. At the time of inspection, no meter was found at spot. The accused had connected copper wires directly from the service cable of the company in order to illegally abstract and use the electricity at the said premises for domestic purpose and was accordingly, found indulging in direct theft of electricity without meter by illegal means.
The accused did not allow the officials of the company to take photographs of the illegal tapping as alleged. No material was seized due to resistance caused by the accused. The total connected load which was illegally used by the accused for domestic purpose was assessed by the inspection team as 2.710 KW. A load report was also prepared at the time of inspection. The accused was booked for the offence of direct theft of electricity.
Page 2 CC No.205/07 BYPL VS. Man Mohan Sharma
3. Subsequently, theft assessment bill in the sum of Rs. 50,361/- was raised against the accused. On the failure of the accused to deposit the same, present complaint was filed against the accused.
4. The accused was summoned U/s 135 r/w Section 151 of the Electricity Act 2003 by my ld. predecessor vide order dated 31.07.2007 after recording the pre - summoning evidence. Notice u/s 251 Cr.PC of offence punishable u/s 135 and 151 of Electricity Act, 2003 was framed against the accused by my ld. predecessor court vide order dated 17.08.2009 to which accused pleaded not guilty and claimed trial.
5. Complainant in support of its case examined 2 witnesses namely PW-1 Sh. Ram Pher ( Sr. Manager ), and PW-2 Sh. Rajeev Ranjan (Authorized representative).
PW-1 Sh. Rampher, Sr. Manager deposed that on 29.04.2006, he was posted as Deputy Manager Enforcement at Gandhi Market and he alongwith Sh.Kadeem Ahmed (GET), Saurabh Sharma (lineman) and Vineet Kain (Assistant Line man) conducted an inspection at premises no. 6629/1, Gali Tank Wali, Ahata Kinara, Pahar Ganj, New Delhi, at the instructions of Sh.N.Roy, Business Manager, (BYPL) Pahar Ganj. On inspection, it was found that there was no meter installed at the premises and direct theft of electricity was taking place by tapping illegal wires from the service cable of BSES which was passing nearby the door of the accused.
Page 3 CC No.205/07 BYPL VS. Man Mohan Sharma They prepared the inspection report (Ex.CW2/2), meter report ( Ex.CW-2/3 ), load report ( Ex.CW2/1 ) bearing his signatures at point A. They could not take photographs or seize any material being used for theft due to obstruction by the accused who was present at the site. The reports were offered to the accused who refused to sign the same. The same were also not allowed to be pasted on the premises.
PW- 2 Sh. Rajeev Ranjan deposed that the present complaint Ex.CW1/3 was filed by Sh.Jitender Shankar. He was authorized vide letter of authority in his favour Ex. PW-2/A to act, appear and plead on behalf of the company in this case.
6. In his statement recorded u/s 313 Cr.PC, accused has denied the allegation and stated that he has been falsely implicated in the present case and no raid was conducted at his premises.
7. Ld. Counsel for the accused has argued that no raid was conducted at the premises belonging to the accused and the case is purely based on hearsay evidence. During cross examination PW-1 Sh.Rampher did not say anything against the accused. There is no material evidence on record which connect the theft with the accused. No independent person was joined at the time inspection. The local police was also not informed prior to conducting the raid or at the time of inspection or afterwards to seize the incriminating material. The company failed to prove the factum of Page 4 CC No.205/07 BYPL VS. Man Mohan Sharma occupation of accused of the inspected premises. It was contended that company had failed to prove its case so, accused was entitled to be acquitted in this case.
8. Per contra, Counsel for complainant has argued that accused committed direct theft of electricity. The accused had admitted his liability and settled the matter for 50% of the impugned bill before the ld. predecessor of this court vide order dated 29.03.08, however he did not comply the said order. At the time of inspection, no meter was installed at site and the total load was found running through illegal tapping wire which was connected from BSES line. As per deposition of PW-1 Sh. Rampher, who was member of the raiding team, the company has proved its case against the accused beyond reasonable doubt. Accordingly, accused is liable to be convicted in this case.
9. I have gone through the ocular / documentary evidence adduced on record and arguments advanced at bar by counsel for parties.
10. The principle of fastening the criminal liability is different than that of civil liability in case of electricity matters. It was not mentioned in the inspection report whether the accused was occupying the inspected premises in the capacity of tenant or owner. No inquiry in this respect was made by the inspection team. 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 Page 5 CC No.205/07 BYPL VS. Man Mohan Sharma evidence is required to be led by the company which could prove that the accused was connected with the premises in which the theft was being committed. No such evidence has been adduced by the company.
11. As per Regulation 25 (vii) Delhi Electricity Regulatory Commission (Performance Standards Metering and Billing) Regulation, 2002, the report must be signed by each member of the joint team. Sh. Saurabh Sharma (lineman) and Vineet Kain (Assistant Lineman) did not sign the inspection report. The non signing on the inspection report of these two officials casts doubt the report itself. Witnesses Kadeem Ahmed (GET), Saurabh Sharma (lineman) and Vineet Kain (Assistant Lineman) who were members of the raiding team were not examined by the company. Both the lineman were not examined also.
12. Admittedly, the inspecting team has not seized any material from the site which was used for the theft of electricity which was mandatory on their part as per aforesaid Regulation. PW- 1 Sh. Ram Pher stated that accused did not allow the members of raiding team to seize the material. The members of the inspecting team were within their rights to call the police for help to seize the material, which they failed to do. The non seizure of case property goes to the root of this case. As per the recent judgment of Hon'ble High Court in 2012 (4) JCC 2713 titled as BSES Rajdhani Power Ltd. Vs. Sunheri & Ors., the non seizure of material through which direct theft was being committing was held to Page 6 CC No.205/07 BYPL VS. Man Mohan Sharma be fatal to the case of the company.
13. This inspection was carried out in the year 2006, the complainant company was under obligation to carry a written authority signed by designated officer of the licensee as per Regulations 25 (i) of the Delhi Electricity Regulatory Commission ( Performance Standards - Metering and Billing ) Regulations, 2002, which they failed to do and no such authority was placed on record either.
14. As per notification dated 17.05.2005 technical officer not below the rank of Executive Engineer / Manager could search, seize or remove all such devices used for unauthorized use of electricity. This nomination is to be complied under section 135 (2)(b) of the Indian Electricity Act. It is not brought on record as to who was the Authorized officer associated in the inspection / raid as per the above notice provision. This non compliance leaves a serious doubt in the present case.
15. 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 Page 7 CC No.205/07 BYPL VS. Man Mohan Sharma 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 without prejudice to any penalty which may be imposed on prosecution be initiated, it shall be liable to pay compensation to the affected person along with penalty to be determined by the Appropriate Commission.
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 than it creates a material irregularity in booking the case of theft further casting serious doubt on the truthfulness of the inspection report prepared by its officials.
16. The arguments that accused had settled the case in this court for 50% of the impugned bill is not tenable. It is clarified that only on the application of the company for revival of case, my ld. predecessor issued notice to the accused for trial and accordingly notice u/s 251 Cr.PC was framed against the accused. Settlement of impugned bill by accused is no admission on part of accused in a criminal trial. In notice u/s 251 Cr.PC he pleaded not guilty and claimed trial. In a criminal case, prosecution has to prove the guilt of the accused beyond reasonable doubt to secure his conviction.
17. Although a conviction can be safely based on the testimony of a single witness which seems trustworthy and Page 8 CC No.205/07 BYPL VS. Man Mohan Sharma reliable. In the present case, there are material contradictions in the testimony of PW-1 as already discussed herein before, so, it shall be highly unsafe to rely on his testimony.
18. 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.
19. In view of the foregoing reasons, company has failed to 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.
Announced in open court (Arun Kumar Ayra)
ASJ/Special Court (Elect.)
Tis Hazari/Delhi/11.07.2013
Page 9
CC No.205/07
BYPL VS. Man Mohan Sharma
11.07.2013
Present: Sh. Shivendu Singh, Ld. Counsel with Sh.Mukesh
Sharma, Authorized Representative for the complainant company.
Accused on bail with Ms. Chitramal, Legal Aid Counsel Vide my separate judgment, dictated and announced in the open court, accused is acquitted in the present case.
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 complainant company after expiry of period of appeal.
File be consigned to record room.
(Arun Kumar Arya) ASJ/Special Court (Elect.) Tis Hazari/Delhi/11.07.2013 Page 10