Delhi District Court
Bses Yamuna Power Ltd vs . Laxman Dass on 21 March, 2014
CC No: 303/08
Police Station: Pahar Ganj
U/S 135 of Electricity Act
BSES Yamuna Power Ltd Vs. Laxman Dass
IN THE COURT OF SHRI ARUN KUMAR ARYA,
ADDITIONAL SESSIONS JUDGE, SPECIAL COURT
(ELECTRICITY), TIS HAZARI COURT, DELHI
CC No. 303/08
Unique case ID No.02402R0049362009
BSES Yamuna Power Ltd.
Having its Registered office at
Shakti Kiran Building,
Karkardooma, Delhi110032
(Through its authorized representative
Sh. C. B Sharma) ............ Complainant
Vs.
Laxman Dass (User)
MSC - 119 FF, Yog Maya,
Mohalla Multani Dhanda,
Pahar Ganj, Delhi ................ Accused
Date of Institution ..............13.05.2008
Judgment reserved on .............. 10.03.2014
Date of Judgment .............. 21.03.2014
Final Order .............. Acquittal
JUDGMENT
1. As per case of complainant, on 07.06.2007 at 11:30 AM, a raid was conducted at the premises MSC - 119 FF, Yog Maya, Page 1 of 15 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 21.03.2014 CC No: 303/08 Police Station: Pahar Ganj U/S 135 of Electricity Act BSES Yamuna Power Ltd Vs. Laxman Dass Mohalla Multani Dhanda, Pahar Ganj, Delhi. The inspection team was headed by Sh. R. P. Aggarwal (AM) and team comprising of Sh. S. K. Gandhi (AM), Sh. Akhilesh Kumar (GET), Sh. Munna Lal and Sh. Rakesh Ranjan (both lineman).
2. At that time, inspecting team found that accused was indulging in direct theft of electricity from BSES service line for other through the 3leggo wire with tapping. Videography of the connected load was done by a member of M/s. Arora Photo Studio. The accused was using the electricity for industrial purpose to the tune of 3.240 KW. Necessary videography / photography showing the connected load and mode of direct theft done by the joint inspection team.
3. As per procedure the raiding team called BM © Pahar Ganj at the site and in his presence the material i.e. two single single core red colour wire of 7/22 PVC Cu. wire in size and 2.5 meter was seized which was used for direct theft of electricity. The accused was booked for the offence of direct theft of electricity. The accused neither accepted nor allowed the team member to paste the inspection report.
4. The complainant is a company incorporated under the Page 2 of 15 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 21.03.2014 CC No: 303/08 Police Station: Pahar Ganj U/S 135 of Electricity Act BSES Yamuna Power Ltd Vs. Laxman Dass 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 MSC - 119 FF, Yog Maya, Mohalla Multani Dhanda, Pahar Ganj, 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.
5. An assessment theft bill of Rs.1,04,430/ was raised against the accused for theft of electricity.
6. The accused was summoned U/S 135 of the Electricity Act 2003 by my ld. predecessor vide order dated 12.09.2008 after recording the pre - summoning evidence. Notice U/S 251 Cr.PC of offence punishable U/S 135 of Electricity Act, 2003 was framed against the accused by my ld. predecessor on 08.03.2010 to which accused pleaded not guilty and claimed trial.
7. Complainant in support of its case examined 3 witnesses namely PW - 1 Sh. R. P. Aggarwal (DGM), PW - 2 Sh. Nirakar Roy Page 3 of 15 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 21.03.2014 CC No: 303/08 Police Station: Pahar Ganj U/S 135 of Electricity Act BSES Yamuna Power Ltd Vs. Laxman Dass and PW - 3 Sh. Mukesh Sharma.
PW - 1 Sh. R. P. Aggarwal, deposed that on 07.06.2007, at about 11:30 AM he along with Sh. S. K. Gandhi (AM), Sh. Akhilesh (GET), Sh. Munna Lal and Sh. Rakesh Ranjan (both lineman) had inspected the premises bearing no. MSC - 119 FF, Yog Maya, Mohalla Multani Dhanda, Pahar Ganj, Delhi.
Accused Laxman Dass was using the electricity directly from BSES service line through illegal wire with tapping for industrial purpose. No meter was found at site. The connected load to the tune of 3.240 KW was used for Industrial purpose.
The inspection report (Ex. CW1/A), load report (Ex. CW 1/E) and meter details report (Ex. PW 1/AD) bore his signatures at point A. Videography was captured by Sh. Prahlad from M/s Arora Photo Studio, CD (Ex. CW 1/D).
All the reports were prepared in the presence of accused and offered to the accused who refused to sign the same. He tried to paste the reports at site but accused did not allow to paste the same.
PW - 2 Sh. Nirakar Roy, deposed that on 07.06.2007, he received a telephonic call from team leader Sh. R. P. Aggarwal for seizing the material i.e 2 pieces of PVC copper wire 7/22 SWG, red Page 4 of 15 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 21.03.2014 CC No: 303/08 Police Station: Pahar Ganj U/S 135 of Electricity Act BSES Yamuna Power Ltd Vs. Laxman Dass color having length of 1.25 mtr each. He reached the premises in question and seized the case property. Seizure memo is (Ex. CW 1/C).
PW - 3 Sh. Mukesh Sharma deposed that the present complaint Ex. CW 2 / A was filed by Sh. C. B. Sharma. He was authorized vide letter of authority in his favour Ex. PW 2/A. In his statement recorded U/S 313 Cr.P.C, accused has denied the allegations and he pleaded ignorance about the raid conducted in the premises.
8. Ld. Counsel Ms. Chitra Mal, Adv. 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. P. Aggarwal, admitted during his cross examination that accused was not covered in the video as he left the site before the arrival of inspection report. No statement of any labour was recorded at site who informed him that the premises belongs to the accused. He did not collect any document regarding the ownership / occupation of the accused. He did not place the receipt of videography on judicial record.
He could not tell the name and address of the person who Page 5 of 15 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 21.03.2014 CC No: 303/08 Police Station: Pahar Ganj U/S 135 of Electricity Act BSES Yamuna Power Ltd Vs. Laxman Dass told him about the ownership / occupancy of the premises in question. He tendered the reports to the labour present at site as accused was not present. He also did not remember the distance between the pole and the premises of the accused. He also did not inquired as to who reside at the ground floor.
During cross examination of PW 2 Sh. Nirakar Roy, admitted that he visited the premises in question only to seize the material. He did not took signature of public witness on the seizure memo. He went at the spot to seize the material from ground floor of the property.
During arguments, counsel for accused urged that witnesses Sh. S. K. Gandhi (AM) Sh. Munna Lal and Sh. Rakesh Ranjan were also the members of the raiding team but they did not sign the reports. Sh. S. K. Gandhi has only signed on the seizure memo. Company has not examined Sh. Akhilesh Kumar Sh. S. K. Gandhi (AM) Sh. Munna Lal, Sh. Rakesh Ranjan and Sh. Prahlad (videographer) who were the member of the raiding team. Non - examination of these witnesses who were members of the raiding team in a criminal trial, cause suspicion in the case of the company.
Witness PW 1 Sh. R. P. Aggarwal was very much Page 6 of 15 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 21.03.2014 CC No: 303/08 Police Station: Pahar Ganj U/S 135 of Electricity Act BSES Yamuna Power Ltd Vs. Laxman Dass confused on the presence of accused as in examination in chief he admitted that entire documents were prepared in the presence of accused however in the cross examination he admitted that accused was not videographed as he left the site before the arrival of inspection team.
Names of Sh. Nirakar Roy was not mentioned in the list of witnesses as well as in the complaint, however, he was examined by the company and signed on the seizure memo which clearly show that seizure memo was prepared at the office and not at the spot.
It was requested that company had failed to prove its case on all counts so, accused was entitled to be acquitted in this case.
9. Per contra, Counsel for complainant has argued that accused was indulging in direct theft of electricity from BSES service line for other through the 3leggo wire with tapping. Videography of the connected load was done by a member of M/s. Arora Photo Studio. The accused was using the electricity for industrial purpose to the tune of 3.240 KW. Necessary videography / photography showing the connected load and mode of direct theft done by the joint inspection team. BM © Pahar Ganj was called at the site and in his presence the material i.e. two single single core red colour wire of Page 7 of 15 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 21.03.2014 CC No: 303/08 Police Station: Pahar Ganj U/S 135 of Electricity Act BSES Yamuna Power Ltd Vs. Laxman Dass 7/22 PVC Cu. wire in size and 2.5 meter was seized which was used for direct theft of electricity.
As per deposition of PW - 1 Sh. R. P. Aggarwal and PW 2 Sh. Nirakar Roy 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.
10. 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. S. K. Gandhi (AM), Sh. Munna Lal, Sh. Rakesh Ranjan and Sh. Prahlad (videographer) who were the members of the raiding team. No explanation has been assigned for the non examination of these witnesses.
11. 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 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. No other documentary evidence was adduced on record to show the Page 8 of 15 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 21.03.2014 CC No: 303/08 Police Station: Pahar Ganj U/S 135 of Electricity Act BSES Yamuna Power Ltd Vs. Laxman Dass occupancy of the accused.
During examination - in - chief of PW - 1 Sh. R. P. Aggarwal, he deposed that entire documents were prepared in the presence of accused however during cross examination he admitted that accused was not videographed as he has left the premises before the arrival of the inspection. There is variance in his statement regarding presence of accused at spot which creates suspicion on his deposition. This witness did not identify the accused in the court.
As per the case of the company and deposition of company's witnesses theft was going on the first floor of the premises in question, however, PW 2 Sh. Nirakar Roy, during cross examination admitted that he went at the spot to seize the material from ground floor, this type of evidence on behalf of company creates doubt on seizure of the case property as the alleged theft was going on the first floor. No independent person was joined at the time of seizure of case property.
Name of Sh. Nirakar Roy was mentioned in the complaint as well as in the list of witnesses, however, he was examined by the company. Non - mentioning the name of Sh. Nirakar Roy in the list of witnesses clearly creates suspicion on the complaint itself. Page 9 of 15 (Arun Kumar Arya)
ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 21.03.2014 CC No: 303/08 Police Station: Pahar Ganj U/S 135 of Electricity Act BSES Yamuna Power Ltd Vs. Laxman Dass As per para 6 of the complaint "videography of the connected load was done by a member of M/s. Arora Photo Studio"
and as per para 10 "it is mentioned that necessary videography / photography showing the connected load and mode of direct theft was done by the joint inspection team". This kind of contents of complaint creates confusion as to who conducted the videography at the time of inspection and weakens the case of the company.
12. As per PW 1 Sh. R. P. Aggarwal videography was taken at site by Sh. Prahlad from M/s Arora Photo Studio, however name of this person was not mentioned in the complaint or in the list of witnesses. 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. CW1/D) 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 Page 10 of 15 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 21.03.2014 CC No: 303/08 Police Station: Pahar Ganj U/S 135 of Electricity Act BSES Yamuna Power Ltd Vs. Laxman Dass in the designated Special Court. The complaint in the present case was filed on 13.05.2008 after 11 months 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 is always fatal to prosecution case (Sahib Singh Vs. State of Haryana AIR 1997 SC 3247.
14. 5 persons i.e. Sh. R. P. Aggarwal, Sh. S. K. Gandhi (AM), Sh. Akhilesh Kumar, Sh. Munna Lal and Sh. Rakesh Ranjan were the members of the raiding team however only 2 members i.e. Sh. Akhilesh Kumar and Sh. R. P. Aggarwal signed on the reports i.e. Inspection report, meter detail report and load report. Sh. S. K. s Gandhi has only signed the seizure memo. A 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". The non signing of the inspection report by all the member of raiding team casts doubt in the inspection report.
Page 11 of 15 (Arun Kumar Arya)
ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 21.03.2014 CC No: 303/08 Police Station: Pahar Ganj U/S 135 of Electricity Act BSES Yamuna Power Ltd Vs. Laxman Dass
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 Authorized 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 take the police help for proper verification of the occupant / accused Page 12 of 15 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 21.03.2014 CC No: 303/08 Police Station: Pahar Ganj U/S 135 of Electricity Act BSES Yamuna Power Ltd Vs. Laxman Dass thereby violating the aforesaid regulation. Even the police officials who had joined the raid were not examined as witnesses.
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. Most importantly, Sh. C. B. Sharma, officer of the company, who had filed this complaint was not cited as a witness in the complaint. He was not examined in the court either, so the complaint Ex. CW 2/A remains unproved on record.
18. 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 Page 13 of 15 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 21.03.2014 CC No: 303/08 Police Station: Pahar Ganj U/S 135 of Electricity Act BSES Yamuna Power Ltd Vs. Laxman Dass 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 PW - 2 and PW - 3 have 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.
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 or in pursuance to interim order of any court qua the theft bill raised by the company on the basis of inspection dated 07.06.2007 be released by the company after expiry of period of appeal.
Page 14 of 15 (Arun Kumar Arya)
ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 21.03.2014 CC No: 303/08 Police Station: Pahar Ganj U/S 135 of Electricity Act BSES Yamuna Power Ltd Vs. Laxman Dass File be consigned to record room.
Announced in open court (Arun Kumar Arya) ASJ/Special Court (Elect.) Tis Hazari/Delhi/21.03.2014 Page 15 of 15 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 21.03.2014