Delhi District Court
Bypl vs . Mohd. Saleem on 13 March, 2013
C.C. No. 834/07
BYPL Vs. Mohd. Saleem
IN THE COURT OF SH. ARUN KUMAR ARYA
ADDITIONAL SESSIONS JUDGE, SPECIAL COURT, (ELECTRICITY),
TIS HAZARI COURT, DELHI
Complaint instituted on : 30.05.2006
Judgment reserved on : 27.02.2013
Judgment pronounced on : 13.03.2013
Complaint Case No : 834/07
Unique Case ID No. : 02402R0852192008
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 Sharma
..............Complainant
Versus
Mohd. Saleem
Shop No - 617 A, Hamilton Road,
Kashmeri Gate, Chandni Chowk,
New Delhi ................Accused
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 Page 1 of 14 C.C. No. 834/07 BYPL Vs. Mohd. Saleem 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 Shop No - 617 A, Hamilton Road, Kashmeri Gate, Chandni Chowk, New Delhi where the offence has been allegedly committed by the accused persons. The present case was filed through Sh. Jitender Shankar, 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 10.04.2006, a joint inspection team comprising of (i) Sh. D.K. Arya (Assistant Manager), (ii) Sh. Sanjeev Kumar (Trainee Engineer), (iii) Sh. Vinay Kumar (Engineer), (iv) Sh. Rajender Singh (Lineman) and (v) Sh. Bishnu (Electrician) inspected the premises bearing Shop No - 617 A, Hamilton Road, Kashmeri Gate, Chandni Chowk, New Delhi. During the course of inspection the Page 2 of 14 C.C. No. 834/07 BYPL Vs. Mohd. Saleem accused was found to be indulging in direct theft of electricity by bye passing the meter tapping from the BSES service line of another user with the help of white colour copper wire. The total connected load 0.586 KW/NX/DT which was illegally used by the accused and same was assessed by the inspection team.
4. During the course of inspection official of the company called Sh. S. K. Gajbhiye, Manager Enforcement, at site for seizing the illegal material from the spot. Subsequently, theft assessment bill in the sum of Rs. 27,598/ 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 15.10.2007 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 19.05.2008 to which accused pleaded not guilty and claimed trial.
6. Company in support of its case examined 4 witnesses namely PW1 Sh. C.B. Sharma (Authorized Representative), PW 2 Sh. D.K. Arya (Senior Manager), PW 3 Sh. Sanjeev Kumar (Trainee Engineer) and PW 4 Sh. S.K. Gajbhiye (Assistant Vice President, Enforcement).
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BYPL Vs. Mohd. Saleem PW 1 Sh. C. B. Sharma deposed that the present complaint Ex. PW 1 / A was filed by Sh. Jitender Shankar. He was authorized vide letter of authority in his favour Ex. CW 1 / B. PW2 Sh. D.K. Arya, deposed that on 10.04.2006, he along with other officials of the company conducted an inspection at Shop No - 617 A, Hemilton Road, Kashmiri Gate, Chandani Chowk, New Delhi and said premises were occupied by accused Mohd. Saleem. 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.PW2/A) and load report ( Ex.PW2/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/D1) were prepared by the member of the raiding team showing the irregularities and connected load found at the spot. He further relied upon the photographs Ex. PW 2/ A and their true copy of CD (Ex. PW 2 / C). Entire inspection report was offered to the accused who refused to accept & sign the same. Seizure memo was also prepared at site (Ex. PW 2/ C).
PW3 Sh. Sanjeev Kumar, deposed that on 10.04.2006, a raiding team comprising of himself, Sh. D.K. Arya, Sh. Vinay Kumar, Sh. Page 4 of 14 C.C. No. 834/07
BYPL Vs. Mohd. Saleem Rajender Singh and Sh. Bishnu had conducted the inspection at premises bearing no. Shop No - 617 A, Hamilton Road, Kashmiri Gate, Chandani Chowk, Delhi and made the similar allegations against the accused.
PW4 Sh. S.K. Gajbhiye, deposed that on 10.04.2006, he received a telephonic call from Sh. D.K. Arya. He reached the premises in question and was shown the mode of theft of electricity. On his instructions, lineman removed the illegal cable. Team leader seized the same and prepared the seizure memo (Ex. 2 / C).
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 in Ex. CW 2 / D there is no photograph which pertained to premises 617A. He could not show that the photographs which could show the ends of the wire connected in the shop. He admitted that inspected team did not associate the public witnesses.
Page 5 of 14 C.C. No. 834/07
BYPL Vs. Mohd. Saleem In the cross examination PW 3 admitted that he did not remember whether the present raid was conducted before or after other raids, which were also conducted on the same day. He could not tell whether they have any written permission with them for conducting the raid. He stated that 4 photographs marked as A, B, C and D of Ex. CW 2/ D belongs to the premises involved in the complaint and rest of the photographs pertains to the first floor however he cannot tell the address.
Sh. Parveen Yadav, counsel for accused submitted that there was no photograph of meter installed in the subject premises. Although it was alleged that theft was being committed through the service line of other consumer and they did not examine this consumer to prove the factum of theft. The wire shown in the photographs (Ex. CW 2/D) is a single core wire which is different from the Ex.P1. He further argued that theft cannot be committed with single core wire.
The counsel for the accused argued that the company has violated the DERC Regulation and raised a theft bill on higher side. As per DERC Regulation 2(f), "heating or cooling use of these apparatus / st loads shall be taken into account as per prevailing season (i.e. 1 April to 30th September for cooling use and 1st October to 31st March for heating use)". In this case, company has raised a theft bill on higher side after Page 6 of 14 C.C. No. 834/07 BYPL Vs. Mohd. Saleem taking the 0.350 load of fridge for the period 10.10.2005 to 10.04.2006, load of fridge can not be calculated as per DERC Regulation. This was done only to implicate the accused in this case. Accused used the load of 0.236 KW in the shop and the monthly bill of this load comes to Rs. 400/ approximately, which was regularly paid by the accused and he also filed the copies of these bill in his defence evidence which clear suggests that accused is not involved in theft of electricity.
No written permission was filed on record. They did not inform local police about conducting of raid. He further argued that the photographs Ex. CW 2 / D shows the address as 695, Hamilton Road. Accused was not shown in any of the photographs and company has not made the person who was shown in the photograph Ex. CW 2/D as an accused. Witness Sh. Vinay Kumar (Engineer) who was also the member of the raiding team and also signed on the entire report was not examined by the company.
All the members signed the entire inspection report mentioning the date of inspection however, Sh. Vinay Kumar did not mention the date of inspection below his signature on the inspection report.
As per complaint, the public present at site created hindrance Page 7 of 14 C.C. No. 834/07 BYPL Vs. Mohd. Saleem to conduct the raid properly whereas no photograph showed the public hindrance during the inspection. No independent person was joined at the time of seizure of case property. They did not verify the documents of ownership in order to find the name of registered consumer of the other service line from which the electricity was being abstracted.
The seizure memo did not bear the signature of any independent witnesses. He further urged that the company had not examined the witnesses in this case i.e Sh.Vinay Kumar (Engineer), Sh. Rajender Singh (Lineman) and Sh. Bishnu (Electrician) and other witnesses as cited in the list of witnesses filed by them. Withholding this witnesses who were member of the raiding team in a criminal trial, cause suspicion in the case of the company. It was further submitted that the accused has been falsely 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 by bye passing the meter and by directly tapping from BSES service line of another user with the help of white colour copper wire. As per deposition of PW 2 Sh. D.K. Arya, Sh. Sanjeev Kumar and Sh. S.K. Gajbhiye, the company has proved its case against the accused beyond reasonable doubt. Accordingly, Page 8 of 14 C.C. No. 834/07 BYPL Vs. Mohd. Saleem 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 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 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) 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 Page 9 of 14 C.C. No. 834/07 BYPL Vs. Mohd. Saleem inspecting team". Sh. Vinay Kumar member of raiding team as per complaint, took photographs of the site with digital camera did not sign the inspection report. Moreover, his non - examination in the court render the case weak and as per 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 company.
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 10.04.2006 however the complaint against the accused was filed on 30.05.2006 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 10 of 14 C.C. No. 834/07
BYPL Vs. Mohd. Saleem No such complaint was made in the present case.
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 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 Notification dated 31.03.2004 issued by Lt. Governor of the National Capital Territory of Delhi, authorized only the technical officers of the rank of Manager / Executive Engineer and above, in this respect. As per this notification Sh. D.K. Arya and Sh. Sanjeev Kumar cannot be said to be the Authorized officer as their ranks at the time of raid was of Assistant Manager. The absence of such an Authorized officer creates a material irregularity on the part of company which goes to Page 11 of 14 C.C. No. 834/07 BYPL Vs. Mohd. Saleem root of this case.
15. No independent person was joined at the time of seizing of case property. The local police was also not informed prior to conducting the raid. PW 2 admitted in his cross examination that photographs Ex. CW 2/D did not pertain to the premises in question, however, PW 3 admitted that photographs A, B, C & D of Ex. CW 2/D pertained to the premises in question. The version of both the witnesses is contradictory to each other. It was also alleged that theft was being committed through the service line of other consumer but Company did not examine the said consumer to prove the factum of theft.
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 Page 12 of 14 C.C. No. 834/07 BYPL Vs. Mohd. Saleem 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 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. Page 13 of 14 C.C. No. 834/07
BYPL Vs. Mohd. Saleem 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 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/13.03.2013 Announced in the open court Page 14 of 14