Delhi District Court
Bses Yamuna Power Ltd vs . Safal & Ors. on 6 September, 2013
CC No: 362/08
Police Station: Karol Bagh
U/S 135 of Electricity Act
BSES Yamuna Power Ltd Vs. Safal & Ors.
IN THE COURT OF SHRI ARUN KUMAR ARYA,
ADDITIONAL SESSIONS JUDGE, SPECIAL COURT
(ELECTRICITY), TIS HAZARI COURT, DELHI
CC No. 362/08
Unique case ID No.02402R0049322009
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. Safal (User)
R/o House No. 3937, Gali No.28,
Reghar Pura, Karol Bagh,
Delhi.
2.) Sh. Phool Chand (R/C)
R/o House No. 3937, Gali No.28,
Reghar Pura, Karol Bagh,
Delhi. ................ Accused
Date of Institution .............. 26.05.2008
Judgment reserved on .............. 03.09.2013
Date of Judgment .............. 06.09.2013
Final Order .............. Acquittal
Page 1 of 11 (Arun Kumar Arya)
ASJ / Special Court (Electricity)
Tis Hazari Courts, Delhi / 06.09.2013
CC No: 362/08
Police Station: Karol Bagh
U/S 135 of Electricity Act
BSES Yamuna Power Ltd Vs. Safal & Ors.
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. 3937, Gali No.28, Reghar Pura, Karol Bagh, 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 07.02.2008 at 02:30 PM, a team comprising of (i) R. K. Upadhyay (Assistant Manger, RPG), (ii) Sh. D.K. Arya (MRI, Recovery Officer) and (iii) Sh. Sugravi (lineman) had conducted a inspection / raid was conducted as per the direction of DGM at premises bearing No. House No. 3937, Gali No. 28, Reghar Pura, Karol Bagh, Delhi. At that time, inspecting team found that accused no. 1 has the user and accused no. 2 has registered consumer of the electricity connection installed at the premises. The Page 2 of 11 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 06.09.2013 CC No: 362/08 Police Station: Karol Bagh U/S 135 of Electricity Act BSES Yamuna Power Ltd Vs. Safal & Ors.
accused Safal was found indulging in direct theft of electricity from BSES main service line through illegal wire tapping. Illegal material i.e. one meter no. 23102738 and black colour cable size 2X10 MM sq. were seized by the team. The reports and documents were not signed by the accused at the spot. Inspection team took the photographs as well as conducted videography at the site. The total connected load which was illegally used by the accused to the tune of 5.206 KW / NX. The accused was booked for the offence of direct theft of electricity.
3. Subsequently, theft assessment bill in the sum of Rs.1,57,649/ 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 of the Electricity Act 2003 by my ld. predecessor vide order dated 24.02.2010 after recording the pre - summoning evidence. Notice under section 251 Cr.PC was framed against accused no. 2 (Phool Chand) by my ld. predecessor on 30.10.2010 u/s 150 / 151 Electricity Act (to be referred as "Act" hereinafter) to which accused no. 2 pleaded not guilty and claimed trial. Accused no. 1 (Safal) was declared proclaimed offender vide order dated 30.10.2010 by my ld. Page 3 of 11 (Arun Kumar Arya)
ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 06.09.2013 CC No: 362/08 Police Station: Karol Bagh U/S 135 of Electricity Act BSES Yamuna Power Ltd Vs. Safal & Ors.
predecessor.
5. Complainant in support of its case examined 2 witnesses namely PW 1 Sh. R. K. Upadhyaya (Senior Manager) and PW 2 Sh. Rajeev Ranjan (Authorized representative).
PW 1 Sh. R. K. Upadhyay, Senior Manager deposed that on 07.02.2008 at about 02:30 pm he along with (i) Sh. D.K.Arya and (ii) Sh. Sugarvi had inspected the premises bearing no. 3937, gali no. 28, Ragar Pura, Karol Bagh. At that time, accused was found indulging in direct theft of electricity by bypassing the meter, tampering the service line before the meter. The total connected load of 5.206 KW was being used by the accused for commercial purpose.
The inspection report (Ex. CW2/A), load report (Ex. CW 2/B) and seizure memo (Ex. CW 2 / C) bore his signatures at point A. Necessary photographs (Ex. CW 2 / D) and CD (Ex. CW 2 / D 1) were taken of the mode of theft.
PW2 Sh. Rajeev Ranjan deposed that the present complaint Ex. CW 1 / A was filed by Sh. C. B. Sharma. He was authorized vide letter of authority in his favour Ex. CW 1/B.
6. In his statement recorded u/s 313 Cr.PC, accused has denied the allegation against him. He told that he was the tenant of Page 4 of 11 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 06.09.2013 CC No: 362/08 Police Station: Karol Bagh U/S 135 of Electricity Act BSES Yamuna Power Ltd Vs. Safal & Ors.
the premises in question and surrendered the tenancy to its owner in the year 2000 itself. 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 1 Sh. R. K. Upadhyay, in his cross examination admitted that 3 4 workers were met him and out of them one worker told name of accused as Safal. He did not verify the owner of the premises in question. There was no written permission with him to conduct the said raid.
Counsel for the accused contended that no independent person was joined at the time of seizure of case property. They had not checked the identity proof of persons present at site, at the time of inspection. It was further contended that case property was not proved as same was misplaced by the company. Witness Sh. Sugarvi was also the members of the raiding team but he did not sign any of the reports. Company has not examined Sh. D. K. Arya and Sh. Sugarvi.
Non - examination of these witnesses who were members of the raiding team in a criminal trial, cause suspicion in the Page 5 of 11 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 06.09.2013 CC No: 362/08 Police Station: Karol Bagh U/S 135 of Electricity Act BSES Yamuna Power Ltd Vs. Safal & Ors.
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 was found indulging in direct theft of electricity by bypassing the meter, tampering the service line before the meter. The total connected load of 5.206 KW was being used by the accused for commercial purpose.
As per deposition of PW 1 Sh. R. K. Upadhyay 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. D.K. Arya and Sh. Sugarvi who were member of the raiding team and cited in the list of Page 6 of 11 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 06.09.2013 CC No: 362/08 Police Station: Karol Bagh U/S 135 of Electricity Act BSES Yamuna Power Ltd Vs. Safal & Ors.
witnesses. No explanation has been assigned for the non examination of these witnesses. So adverse inference has to drawn against the company.
10. The name of accused is given in the inspection report as the registered consumer of the electricity. In order to connect the accused with the 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. Case property was not proved as same was misplaced by the company which itself creates their case weaken.
11. It is alleged in the complaint that accused no. 2 (Phool Chand) 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 Page 7 of 11 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 06.09.2013 CC No: 362/08 Police Station: Karol Bagh U/S 135 of Electricity Act BSES Yamuna Power Ltd Vs. Safal & Ors.
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 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 non filing of complaint in stipulated time, gives ample time to the company to make amends and embellishment in the complaint. This inordinate delay in filing the complaint which goes to the root of the matter.
14. s per Regulation 52 (ix) of A 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". The non signing of the inspection report by all the Page 8 of 11 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 06.09.2013 CC No: 362/08 Police Station: Karol Bagh U/S 135 of Electricity Act BSES Yamuna Power Ltd Vs. Safal & Ors.
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 twenty - four hours from the time of such disconnection.
The company has not lodged any FIR in this case to Page 9 of 11 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 06.09.2013 CC No: 362/08 Police Station: Karol Bagh U/S 135 of Electricity Act BSES Yamuna Power Ltd Vs. Safal & Ors.
take the police help for proper verification of the occupant / accused thereby violating the aforesaid regulation.
17. A special Act created always have special measures to avoid its misuse by the investigating agencies, so bearing in mind 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.
18. Although conviction can be based on the testimony of a single witness which seems trustworthy and reliable. In the present case, the testimony of PW1 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.
19. As per the criminal jurisprudence, the prosecution has to prove its case beyond reasonable doubt and has to travel a long Page 10 of 11 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 06.09.2013 CC No: 362/08 Police Station: Karol Bagh U/S 135 of Electricity Act BSES Yamuna Power Ltd Vs. Safal & Ors.
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.
For the foregoing reasons, the complainant company has failed to prove the charges leveled against the accused. Accordingly, accused no. 2 (Phool Chand) 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. 1 (Safal) 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/06.09.2013 Page 11 of 11 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 06.09.2013