Delhi District Court
Bses Yamuna Power Ltd vs . Nasir & Anr. on 29 October, 2013
CC No: 792/08
Police Station: Chandni Mahal
U/S 135 of Electricity Act
BSES Yamuna Power Ltd Vs. Nasir & Anr.
IN THE COURT OF SHRI ARUN KUMAR ARYA,
ADDITIONAL SESSIONS JUDGE, SPECIAL COURT
(ELECTRICITY), TIS HAZARI COURT, DELHI
CC No. 792/08
Unique case ID No.02402R0052682009
BSES Yamuna Power Ltd.
Having its Registered office at
Shakti Kiran Building,
Karkardooma, Delhi110032
(Through its authorized representative
Sh. C. B Sharma) ............ Complainant
Vs.
1.) Sh. Nasir (User)
2.) Mohd. Yaseem (R/C)
Both at: House No. 1770, First Floor,
Kala Mahal, Khawas Pura,
Delhi ................ Accused
Date of Institution .............. 01.12.2008
Judgment reserved on .............. 29.10.2013
Date of Judgment .............. 29.10.2013
Final Order .............. Acquittal
Page 1 of 13 (Arun Kumar Arya)
ASJ / Special Court (Electricity)
Tis Hazari Courts, Delhi / 29.10.2013
CC No: 792/08
Police Station: Chandni Mahal
U/S 135 of Electricity Act
BSES Yamuna Power Ltd Vs. Nasir & Anr.
JUDGMENT
1. 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 110032 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 premises of House No. 1770, First Floor, Kala Mahal, Khawas Pura, Delhi where the offence has been allegedly committed by the accused. The present case was filed through Sh. C.B. Sharma. Later on Sh. Rajeev Ranjan and thereafter Sh. Mukesh Sharma was substituted as authorized representative by order of this court.
2. As per complaint, on 01.09.2008 at 12:30 PM, a team comprising of Sh. Jitender Kumar (Assistant Manager, Enf.), Sh. Khalil Ur Rehman (DET), Sh. Anil Kumar and Sh. Varun (both lineman) had conducted a inspection / raid was conducted as per the direction of DGM at premises bearing House No. 1770, First Floor, Kala Mahal, Khawas Pura, Delhi.
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ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 29.10.2013 CC No: 792/08 Police Station: Chandni Mahal U/S 135 of Electricity Act BSES Yamuna Power Ltd Vs. Nasir & Anr.
At that time, inspecting team found that accused no. 1 was the user and accused no. 2 has registered consumer of the electricity connection installed at the premises. The accused Nasir was found indulging in direct theft of electricity through illegal tapping BSES LT MP system. One phase electronic meter, Qty1, size 1060 A 2X10 meter no. 12145510 Rd 8371, 2 mtr 2 core black 4 PCS 7X20 SWG, Genus in box,4 mtr Red wire were seized as material evidence at the spot. The reports and documents were not signed by the user at the spot. Inspection team took the necessary visual recording showing the irregularities with the help of digital camera. The total connected load which was illegally used by the accused was 7.336 KW / IX. The accused was booked for the offence of direct theft of electricity.
3. Subsequently, theft assessment bill in the sum of Rs.2,36,328/ was raised against the accused. On the failure of the accused to deposit the same, present complaint was filed against the accused.
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ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 29.10.2013 CC No: 792/08 Police Station: Chandni Mahal U/S 135 of Electricity Act BSES Yamuna Power Ltd Vs. Nasir & Anr.
4. The accused was summoned U/S 135 of the Electricity Act 2003 by my ld. predecessor vide order dated 20.02.2009 after recording the pre - summoning evidence. Notice under section 251 Cr.PC was framed against accused no. 1 (Nasir) on 15.02.2013 U/S 135 of the Electricity Act (to be referred as "Act" hereinafter) to which accused no. 1 pleaded not guilty and claimed trial. Accused no. 2 (Mohd.Yaseem) was declared proclaimed offender vide order dated 16.10.2012.
5. Complainant in support of its case examined 2 witnesses namely PW 1 Sh. Rajeev Ranjan (Authorized Representative) and PW - 2 Sh. Jitender Kumar (Senior Manager).
PW - 1 Sh. Rajeev Ranjan deposed that the present complaint Ex. CW 2 / B was filed by Sh. C. B. Sharma. He was authorized vide letter of authority in his favour Ex. PW 1/A. PW - 2 Sh. Jitender Kumar, Senior Manager deposed that on 01.09.2008 he along with (i) Sh. Ur Rehman (DET), (ii) Sh. Anil Kumar and (iii) Sh. Varun Kumar (both lineman) had inspected Page 4 of 13 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 29.10.2013 CC No: 792/08 Police Station: Chandni Mahal U/S 135 of Electricity Act BSES Yamuna Power Ltd Vs. Nasir & Anr.
the premises bearing no. 1770, Khawas Pura, Darya Ganj, Delhi. At that time, accused was found indulging in direct theft of electricity from the LV mains of BSES. The total connected load of 7.336 KW was being used by the accused for industrial purpose.
The inspection report (Ex. CW2/A), meter details report (Ex.PW 2/1), load report (Ex. CW 2/B) and seizure memo (Ex. CW 2 / C) bore his signatures at point A.
6. In his statement recorded u/s 313 Cr.PC, accused has denied the allegation against him. He told that premises in question is a katra in which 7080 houses are situated. Many persons in the name of Nasir reside at the premises in question. He was falsely implicated in the present case.
7. Ld. Counsel for the accused has argued that accused is falsely implicated in this case and there is no incriminating evidence/ material against him.
PW 2 Sh. Jitender Kumar, in his cross examination admitted that I - card from the accused was not asked by him. No independent person was involved in the inspection report. Ownership Page 5 of 13 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 29.10.2013 CC No: 792/08 Police Station: Chandni Mahal U/S 135 of Electricity Act BSES Yamuna Power Ltd Vs. Nasir & Anr.
/ occupancy documents were not procured by the team. They also did not make inquiry about the aspect of occupancy of the premises. They have no written authority to conduct the raid. Public persons were not made as an witness in this case.
Witness Sh. Anil Kumar and Sh. Varun were also the members of the raiding team but they did not sign any of the reports. Company has not examined Sh. Khalil - Ur Rehman, Sh. Anil Kumar and Sh. Varun.
Non - examination of these witnesses who were members of the raiding team in a criminal trial, cause suspicion in the case of the company. He further urged that company has not mentioned specifically as to which accused was involved in direct theft of electricity. It was requested that company had failed to prove its case on all counts 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. At the time of inspection, accused Nasir was found indulging in direct theft of electricity through Page 6 of 13 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 29.10.2013 CC No: 792/08 Police Station: Chandni Mahal U/S 135 of Electricity Act BSES Yamuna Power Ltd Vs. Nasir & Anr.
illegal tapping BSES LT MP system. He was also shown in the videography which was taken by lineman at the spot. The total connected load of 7.336 KW was being used by the accused for industrial purpose.
As per deposition of PW 2 Sh. Jitender Kumar 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.
The company failed to examine Sh. Khalil - Ur Rehman, Sh. Anil Kumar and Sh. Varun who were member of the raiding team and cited in the list of witnesses. No explanation has been assigned for the non examination of these witnesses. So adverse inference has to be drawn against the company.
10. The name of accused is given in the inspection report as the user of the electricity. In order to connect the accused with the Page 7 of 13 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 29.10.2013 CC No: 792/08 Police Station: Chandni Mahal U/S 135 of Electricity Act BSES Yamuna Power Ltd Vs. Nasir & Anr.
offence reliable evidence is required to be led by the company which could show that the accused was connected with the premises in which the theft was being committed. The owner of the premises was not examined to prove the actual occupant of the premises. It was not mentioned in the inspection report whether the accused was occupying the premises in the capacity of tenant or owner. Failure to make inquiry in this respect puts shadow on the case of company. No independent person was joined at the time of seizure of case property.
11. It is alleged in the complaint that accused no. 2 (Mohd. Yaseem) has abetted in the commission of offence and was accordingly liable for the offence of theft. As per report of Section 107 IPC abetment is, to incite, instigate or aiding a person to do a thing. No such evidence is either proved or brought on record in any form, in this case.
12. No photographer is examined in 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 production of the photographer was held to be fatal to the case of the Page 8 of 13 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 29.10.2013 CC No: 792/08 Police Station: Chandni Mahal U/S 135 of Electricity Act BSES Yamuna Power Ltd Vs. Nasir & Anr.
company.
The Compact disc (Ex. CW2/D1) placed on record is of no help to the company as the same was not proved in accordance with Section 65B of Indian Evidence Act.
13. As per Regulation 52 (Vii) of Delhi Electricity Supply Code and Performance Standards Regulations 2007 " in case of direct theft of electricity licensee shall file the complaint within 2 days in the designated Special Court. The complaint in the present case was filed on 01.12.2008 after 90 days of inspection. Prompt and early reporting of the occurrence by the informant with all its vivid details gives an assurance regarding truth of its version. Undoubtedly, delay in lodging the FIR does not make the complainant's case improbable when such delay is properly explained. However, deliberate delay in lodging the complaint in always fatal (Sahib Singh Vs. State of Haryana AIR 1997 SC 3247.
14. s per Regulation 52 (ix) of A Delhi Electricity Supply Code and Performance Standards Regulations 2007 " the report Page 9 of 13 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 29.10.2013 CC No: 792/08 Police Station: Chandni Mahal U/S 135 of Electricity Act BSES Yamuna Power Ltd Vs. Nasir & Anr.
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 doubt in the inspection report.
15. There is nothing on record to show as to who was the Authorized Officer competent to make this inspection. 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 and to Photo Id Card issued to such officers shall indicate so. No such list is either placed on record for showing as to who was the authorized officer to make this inspection.
16. 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 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 Page 10 of 13 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 29.10.2013 CC No: 792/08 Police Station: Chandni Mahal U/S 135 of Electricity Act BSES Yamuna Power Ltd Vs. Nasir & Anr.
twenty - four hours from the time of such disconnection.
The company has not lodged any FIR in this case to take the police help for proper verification of the occupant / accused thereby violating the aforesaid regulation.
17. The present complaint was filed by Sh. C. B. Sharma stated to be authorized representative of company but later on, other authorized representative were substituted to pursue this complaint. The minutes of the board authorizing Sh. Arun Kanchan C.E.O of the company to authorize any of the officer of the company to file or represent the complaint were not proved by the company. As per recent judgment of Hon'ble Supreme Court of India in State Bank of Travancore Vs. Kingston Computers (I) P.Ltd. III (2011) SLT 53, the letter of authority issued by the C.E.O of the company, was nothing but a scrap of paper. Such an authority is not recognized under law, as such complaint was not instituted by an authorized person.
18. A special Act created always have special measures to avoid its misuse by the investigating agencies, so bearing in mind Page 11 of 13 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 29.10.2013 CC No: 792/08 Police Station: Chandni Mahal U/S 135 of Electricity Act BSES Yamuna Power Ltd Vs. Nasir & Anr.
this principle, Delhi Electricity Supply Code and Performance Standards Regulations, 2007 were formulated. These regulations have statutory force and as per regulation 52, 53 and 54 special measures were added to protect the interest of accused / consumer in case of theft of electricity. If these regulations, are not adhered to while making a case of theft, that has a negative impact on the merit of a case.
19. Although conviction can be based on the testimony of a single witness which seems trustworthy and reliable. In the present case, the testimony of PW2 has material contradictions which are already observed in the foregoing paras. More over, the non adherence to the statutory regulations by the members of the inspecting team while booking a case of theft as already discussed creates serious doubt on the inspection report.
20. 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. Page 12 of 13 (Arun Kumar Arya)
ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 29.10.2013 CC No: 792/08 Police Station: Chandni Mahal U/S 135 of Electricity Act BSES Yamuna Power Ltd Vs. Nasir & Anr.
For the foregoing reasons, the complainant company has failed to prove the charges leveled against the accused. Accordingly, accused no. 1 (Nasir) 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. It be retrieved as & when accused no. 2 (Mohd. Yaseem) is brought or produced before the court U/S 299 Cr.P.C.
Announced in open court (Arun Kumar Ayra) ASJ/Special Court (Elect.) Tis Hazari/Delhi/29.10.2013 Page 13 of 13 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 29.10.2013