Delhi District Court
Bypl vs . Sonu on 26 April, 2013
C.C. No. 889/07
BYPL Vs. Sonu
IN THE COURT OF SH. ARUN KUMAR ARYA
ADDITIONAL SESSIONS JUDGE, SPECIAL COURT, (ELECTRICITY),
TIS HAZARI COURT, DELHI
Complaint instituted on : 22.10.2007
Judgment reserved on : 17.04.2013
Judgment pronounced on : 26.04.2013
Complaint Case No : 889/07
Unique Case ID No. : 02402R0047312009
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 C.B. Sharma
..............Complainant
Versus
Shri Sonu
7786/38, Second Floor,
Katra Aatma Ram,
Anaj Mandi
Pahar Ganj, New Delhi ................Accused
Page 1 of 13
C.C. No. 889/07
BYPL Vs. Sonu
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 company is the licensee for supply of electricity in major parts of Delhi, including the premises bearing 7786/38, Second Floor, Katra Aatma Ram, Anaj Mandi Pahar Ganj, New Delhi where the offence has been allegedly committed by the accused persons. The present case was filed through 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 05.02.2007, a joint inspection team comprising of (i) Sh. A.K. Singh (Manager), (ii) Sh. V.S. Nigam (DM),
(iii) Sh. S. S.Verma (AM), (iv) Sh. K.K. Jain (AM), (iv) Sh. H.S. Sandhu Page 2 of 13 C.C. No. 889/07 BYPL Vs. Sonu (AM), (vi) Sh. Ajay Aggarwal (Engineer) and (vii) Sh. Jai Singh (Engineer) inspected the premises bearing No. 7786/38, Second Floor, Katra Aatma Ram, Anaj Mandi Pahar Ganj, New Delhi. During the course of inspection the accused was found to be indulging in direct theft of electricity directly through illegal wire tapping from service cable. The total connected load 3.450 KW which was illegally used by the accused for industrial purpose and same was assessed by the inspection team.
4. During the course of inspection, Sh. A.K. Singh, Manager Enforcement seized the illegal material from the spot. Subsequently, theft assessment bill in the sum of Rs. 1,36,745/ was raised against the accused by the company. Hence, the present complaint was filed against the accused.
5. The accused was summoned U/S 135 of the Electricity Act 2003 by ld. predecessor of this Court by order dated 08.01.2008 after recording the pre - summoning evidence. A notice u/s 251 Cr.PC was also framed against accused by ld. predecessor of this Court on 13.02.2009 to which accused pleaded not guilty and claimed trial.
6. Company in support of its case examined 4 witnesses namely PW 1 Sh. Rajeev Ranjan (Authorized Representative), PW 2 Page 3 of 13 C.C. No. 889/07 BYPL Vs. Sonu Sh. V.S. Nigam (Senior Manager), PW 3 Sh. A.K. Singh (Assistant Vice President) and PW 4 Sh. S.S. Verma (Senior Manager).
PW 1 Sh. Rajeev Ranjan deposed that the present complaint Ex. CW 1 / B was filed by Sh. C.B. Sharma. He was authorized vide letter of authority in his favour Ex. PW 1/ A. PW2 Sh. V.S. Nigam, deposed that on 05.02.2007, a team comprising of himself, Sh. A.K. Singh (Manager), Sh. S. S. Verma (Assistant Manager), Sh. R.K. Ravi (Assistant Manger), Sh. H.S. Sandhu (Assistant Manger), Sh. Ajay Aggarwal (Junior Manager) and Sh. Jai Singh (JE) had conducted a raid at the premises bearing No. 7786/38, Second Floor, Katra Aatma Ram, Anaj Mandi Pahar Ganj, New Delhi. At the time of inspection accused was found indulging in direct theft of electricity from service line of company through illegal tapping. The details of the inspection were noted by them in the inspection report and diagram showing the mode of theft was also prepared at the spot. The reports i.e. inspection report (Ex.CW2/A) and load report (Ex. CW 2 / B) were prepared at site by the member of the raiding team.
The photographs (Ex. CW 2/D) and compact disc (CD) (Ex. CW 2/E) were prepared by the member of the raiding team showing the alleged irregularities and connected load found at the spot. Material Page 4 of 13 C.C. No. 889/07 BYPL Vs. Sonu which was being used for the theft of electricity was removed and seized by Sh. A.K. Singh (Manager) vide seizure memo (Ex. CW 2/C) PW3 Sh. A.K. Singh and PW 4 Sh. S.S. Verma deposed that on 05.02.2007, a raiding team comprising of themself, Sh. V.S. Nigam, Sh. R.K. Ravi, Sh. H.S. Sandhu, Sh. Ajay Aggarwal and Sh. Jai Singh had conducted the inspection at premises bearing No. 7786/38, Second Floor, Katra Aatma Ram, Anaj Mandi, Pahar Ganj, New Delhi and made the similar allegations against the accused.
In his statement recorded u/s 313 Cr.P.C., accused has denied the allegation and he pleaded ignorance about the raid conducted in the premises.
7. Ld. Counsel for the accused argued that no raid was conducted at the premises of the accused and the case is purely based on hearsay evidence.
In the cross examination PW2 admitted that the neighbours disclosed the name of accused as Sonu but his father name was not disclosed by them. Neighbours also not co - operated the team in the inspection. He further admitted that the identity of the occupants who refused to sign the reports were not known. Accused was not present at the time of inspection. The identity of the accused was not Page 5 of 13 C.C. No. 889/07 BYPL Vs. Sonu inquired or verified by the team. He could not tell whether the accused namely Sonu @ Intzar was the user or the occupant of the premises in question.
In the cross examination PW 3, admitted that he has not signed on the inspection report and he cannot identify the accused. He has also not verified the documents of ownership of the premises. He has no role in the inspection except the seizure memo.
In the cross examination PW 4, admitted that illegal wires were not seized by the team at the premises in question. Police officials who were accompanied with the team never signed in any of the reports and name of that police official were also not known. Accused was present at the time of inspection refused to sign on the reports. The name of the user of the electricity i.e. Sonu was disclosed by the labours present there and name of those persons were not known.
They had no written permission with them for conducting the raid. They have not given any information to the police for conducting the raid. No documents regarding the user / registered consumer were obtained from the persons who were present there.
Company did not made the persons shown in the photograph Ex. CW 2/D (colly) as witnesses. Witness PW 2 Sh. V. S. Nigam and PW Page 6 of 13 C.C. No. 889/07 BYPL Vs. Sonu 3 Sh. A.K. Singh mentioned the name of one witness i.e Sh. R. K. Jain in their examination - in - chief but name of this witness was never mentioned in the complaint nor disclosed by PW 4 Sh. S.S. Verma in his statement. Witness PW 4 admitted in his cross examination that police officials were with them but their signatures were not obtained on any of the reports and these facts were also not mentioned by PW 2 and PW 3. So, the statement of PW 2, PW 3 and PW 4 are contradictory to each other. No independent person was joined at the time of seizure of case property. The inspection team did not verify the documents of ownership. The seizure memo did not bear the signature of any independent witnesses.
Witness Sh. H. S. Sandhu, Sh. Jai Singh, Sh. Ajay Aggarwal and Sh. K. K. Jain were also the members of the raiding team signed on the entire reports were not examined by the company. Withholding these witnesses who were member of the raiding team in a criminal trial, cause suspicion in the case of the company. Sh. V. S. Nigam who was examined by the company did not sign on any of the reports and Sh. A.K. Singh who was the Manager at the time of inspection, who accompanied the inspection team never signed the entire reports except the seizure memo. It was further submitted that the accused has been falsely Page 7 of 13 C.C. No. 889/07 BYPL Vs. Sonu implicated by the company and is entitled to be acquitted in this case.
8. Per contra, counsel for complainant has argued that accused committed direct theft of electricity from service line of company. As per deposition of PW 2 Sh. V.S. Nigam, PW 3 Sh. A.K. Singh and PW 4 Sh. S.S. Verma, 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 premises in the capacity of tenant or owner. No inquiry in this respect was made by the inspection team. In order to connect the accused with the offence, reliable 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 Page 8 of 13 C.C. No. 889/07 BYPL Vs. Sonu 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 Performance Standards Regulations 2007 "the report shall be signed by the Authorized Officer and each member of the inspecting team", however Sh. V. S. Nigam did not sign in any of the reports except seizure memo.
As per clause 52 (vii) Delhi Electricity Supply Code and Performance Standards Regulations 2007, the case against the consumer in designated Special Court shall be filed within 2 days from the date of inspection. This inspection was made on 05.02.2007 however the complaint against the accused was filed on 22.10.2007 without adhering to above stipulation. The delay in filing of complaint in stipulated time, gives ample time to the company to make improvement and embellishment in the complaint and its non - explanation further dilutes this case.
12. The Authorized officer who had disconnected the electricity supply of the consumer was under an obligation to file a complaint of theft of electricity with the concerned police station having jurisdiction within 24 hours of such disconnection as per Section 135 Electricity Act. Page 9 of 13 C.C. No. 889/07
BYPL Vs. Sonu No such complaint was made in the present case.
13. This inspection was carried out in the year 2007, 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 Regulation 52 (i) to (iv) of Delhi Electricity Supply Code and Performance Standards Regulations 2007 "An Authorized officer duly appointed and in the list of Authorized officers published by licensee can inspect the premises and prepare reports". There is nothing on record to show who was the Authorized Officer competent to make this inspection. The non - placing of list of Authorized Officer as stipulated above creates a material irregularity on the part of company which goes to root of this case.
15. No independent person was joined at the time of seizing of case property. Witness PW 2 and PW 3 mentioned the name of one witness i.e Sh. R. K. Jain in their examination - in - chief but name of this witness was never mentioned in the complaint nor disclosed by PW 4 Sh. S.S. Verma in his statement. Witness PW 4 admitted in his Page 10 of 13 C.C. No. 889/07 BYPL Vs. Sonu cross examination that police officials were with them but their signatures are not there in any of the reports and this facts was also not mentioned by PW 2 and PW 3. So, the statement of PW 2, PW 3 and PW 4 are contradictory to each other, further weakens the case of company.
16. 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 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.
17. These regulations have statutory force and as per its Page 11 of 13 C.C. No. 889/07 BYPL Vs. Sonu 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.
18. Although a conviction can be safely 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.
19. 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 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 Page 12 of 13 C.C. No. 889/07 BYPL Vs. Sonu 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/26.04.2013 Announced in the open court Page 13 of 13