Delhi District Court
Bypl vs . Pardeep Kumar on 31 October, 2013
CC No: 593/07
Police Station: Patel Nagar
BYPL Vs. Pardeep Kumar
IN THE COURT OF SHRI ARUN KUMAR ARYA,
ADDITIONAL SESSIONS JUDGE, SPECIAL COURT
(ELECTRICITY), TIS HAZARI COURT, DELHI
CC No: 593/07
Unique case ID No.02402R0046342009
BSES Yamuna Power Ltd.
Having its Registered office at
Shakti Kiran Building,
Karkardooma, Delhi110032
(Through its authorized representative
Sh. Jitender Shankar) ............ Complainant
Vs.
Pardeep Kumar
F81, Ground Floor, Near Main Road,
Punjabi Basti, Baljeet Nagar
New Delhi ................ Accused
Date of Institution ............ 24.03.2007
Judgment reserved on ........... 31.10.2013
Date of Judgment .......... 31.10.2013
Final Order ........... Acquittal
JUDGMENT
1. As per complaint, on 15.07.2006, at about a team comprising of (i) Raju Saklani (A. M. Enf.), (ii) Sh. R. P. Sharma (Eng.) and (iii) Sh. Khalil Ul Rehman (DET Enf.) conducted a inspection / raid at premises bearing no. F81, Ground Floor, Near Page 1 of 10 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 31.10.2013 CC No: 593/07 Police Station: Patel Nagar BYPL Vs. Pardeep Kumar Main Road, Punjabi Basti, Baljeet Nagar, New Delhi. At that time, inspecting team found that accused was indulging in direct theft of electricity by illegally tapping through BSES LV mains using illegal wires. No meter was found at site. The accused was using the load of 0.890 KW / DX / DT and 1.310 KW / NX / DT. The material used for the direct theft of electricity was removed but same was not seized due to the resistance made by the mob gathered at the site as alleged.
2. The officials of the company clicked photographs at the site with the help of digital camera. The reports and documents were not signed by representative of the accused. The accused was booked for the offence of direct theft of electricity.
3. Subsequently, theft assessment bill in the sum of Rs.76,935/ was raised against the accused. On the failure of the accused to deposit the same, present complaint was filed against the accused.
4. 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 Page 2 of 10 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 31.10.2013 CC No: 593/07 Police Station: Patel Nagar BYPL Vs. Pardeep Kumar Delhi, including the premises bearing number 46, Ground Floor, Parda Bagh, Darya Ganj, Delhi where the offence has been allegedly committed by the accused. The present case was filed through Sh. Jitender Shankar, Authorized Officer. Later on, Sh. C. B. Sharma, Sh. Rajeev Ranjan and thereafter Sh. Mukesh Sharma were substituted as authorized representative by order of this court.
5. The accused was summoned U/S 135 of the Electricity Act 2003 (to be referred as "Act" hereinafter) by my ld. predecessor vide order dated 03.09.2007 after recording the pre - summoning evidence. Notice U/S 251 Cr.PC of offence punishable u/s 135 and 151 of Electricity Act, 2003 was framed against the accused by my ld. predecessor on 23.01.2010 to which accused pleaded not guilty and claimed trial.
6. Complainant in support of its case examined 3 witnesses namely PW - 1 Sh. Raju Saklani, PW 2 Sh. R. P. Sharma and PW 3 Sh. Rajeev Ranjan.
PW1 Sh. Raju Saklani, Assistant Manager deposed that on 15.07.2006 he along with Sh. R.P. SharmaEngineer & Mr. KhalilUrRehmanTrainee Engineer and a lineman inspected the premises number F81, Ground Floor, Near Main Road, Punjabi Basti, Baljeet Nagar, Delhi.
Page 3 of 10 (Arun Kumar Arya)
ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 31.10.2013 CC No: 593/07 Police Station: Patel Nagar BYPL Vs. Pardeep Kumar At the time of inspection accused was indulging in direct theft of electricity by taping BSES main line using illegal wires. The whole load in the premises was running through stolen energy. The accused was using the load of 2.20 KW for domestic as well as commercial purpose.
The inspection report (Ex.CW2/1), load report (Ex. CW2/2), bore his signatures at point A. Sh. R. P. Sharma took the photographs of the connected load (Ex. CW 2/4) and true copy of CD Ex.CW2/5. Entire documents were offered to the accused Pradeep Kumar but he refused to accept the same.
PW 2 Sh. R. P. Sharma, Senior Manager, also deposed on similar lines and corroborated testimony of PW 1.
PW3 Sh. Rajeev Ranjan, deposed that the present complaint Ex.CW1/3 was filed by Sh. Jitender Shankar. He was authorized vide letter of authority in his favour Ex. PW1/A.
7. In his statement recorded U/S 313 Cr.PC, accused has denied the allegation against him.
Counsel for accused urged that accused has falsely implicated in the present case as company failed to prove that accused was involved in direct theft of electricity in the premises mentioned in the inspection report. No material was seized by the company. At the Page 4 of 10 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 31.10.2013 CC No: 593/07 Police Station: Patel Nagar BYPL Vs. Pardeep Kumar same counsel for company submitted that accused was using the electricity directly. As per deposition of witnesses examined by the company, the case against the accused is proved beyond reasonable doubt and he is liable to be convicted.
8. I have gone through the ocular / documentary evidence adduced on record and arguments advanced at bar by counsel for parties.
During cross examination, PW 1 Sh. Raju Saklani, was not able to tell name of that lady and other persons who were present at the spot. Company did not make those persons present at the spot as a witnesses in this case.
PW 2 Sh. R. P. Sharma, deposed that he had not mentioned the name of that person who refused to accept the documents. Ownership documents were not asked by the accused at the time of inspection.
9. There are material contradictions, firstly, in the complaint it was mentioned in the para 5 that team consisted of Sh. Raju Saklani, Sh. R. P. Sharma, Sh. Khalil Ul Rehman, but PW 1 and PW 2 deposed in their examination - in - chief that team consisted of lineman. In the complaint it was mentioned that accused using the electricity directly and illegally by tapping through BSES LV mains by Page 5 of 10 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 31.10.2013 CC No: 593/07 Police Station: Patel Nagar BYPL Vs. Pardeep Kumar using illegal wires, on the other hand PW 1 stated in his examination
- in - chief that accused using the electricity by tapping BSES main line using illegal wires. Secondly, PW 1 stated in his examination - in
- chief that user Pardeep Kumar was indulging in direct theft of electricity by tapping BSES main line using illegal wires and PW 2 stated in his testimony that he introduced himself with accused at site.
10. Sh. Khalil - Ur Rehman and lineman who were member of the raiding and cited in the list of witnesses were not examined by the company. No explanation has been assigned for the non examination of these witnesses.
11. As per Regulation 25 (vii) Delhi Electricity Regulatory Commission (Performance Standards Metering and Billing) Regulation, 2002, the inspection report must be signed by each member of the joint team. Lineman did not sign the reports. The non signing of the inspection report by the other members of raiding team shows that above noted rule was not complied.
12. This inspection was carried out in the year 2006, the 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 Page 6 of 10 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 31.10.2013 CC No: 593/07 Police Station: Patel Nagar BYPL Vs. Pardeep Kumar failed to do and no such authority was placed on record either.
13. The company failed to procure the document pertaining to occupancy, tenancy or the ownership of the inspected premises. 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 show that the accused was connected with the premises in which the theft was being committed.
None of the witnesses stated that accused was present at the spot. It is surprising to note as to how the raiding team came to conclusion that the accused was Pardeep Kumar and particularly when no inquiry was made to ascertain his identity from any independent source or any other documentary evidence.
It was further contended that no independent person was joined at the time of preparation of the reports which was incumbent on their part to prove their case. Neither the owner of the premises nor legal representative of the registered consumer of the electricity connection was examined to prove the actual occupant of the premises.
14. PW 1 and PW 2 stated that due to resistance by gathered mob present at the spot did not allow the members of Page 7 of 10 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 31.10.2013 CC No: 593/07 Police Station: Patel Nagar BYPL Vs. Pardeep Kumar raiding team to seize the material. It does not appeal to common sense and logic when they were allowed to take photographs, removed illegal material then how mob could resist the seizure of the illegal material. The members of the inspecting team were within their rights to call the police for help to seize the material, which they failed to do. As per judgment of Hon'ble High Court in 2012 (4) JCC 2713 titled as BSES Rajdhani Power Ltd. Vs. Sunheri & Ors . , the non seizure of wire through which direct theft was being committing was held to be fatal to the case of the company. The Compact disc (Ex. CW2/5) 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.
15. The present complaint was filed by Sh. Jitender Shankar 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 Page 8 of 10 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 31.10.2013 CC No: 593/07 Police Station: Patel Nagar BYPL Vs. Pardeep Kumar nothing but a scrap of paper. Such an authority is not recognized under law, as such complaint was not instituted by an authorized person.
16. 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.
17. 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 and PW 2 has material contradictions. 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, the company has failed to prove the charge leveled against the accused beyond reasonable doubt, he is accordingly acquitted of the offence U/S 135 of the Page 9 of 10 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 31.10.2013 CC No: 593/07 Police Station: Patel Nagar BYPL Vs. Pardeep Kumar Electricity Act, 2003. 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.
Announced in open court (Arun Kumar Arya) ASJ/Special Court (Elect.) Tis Hazari/Delhi/31.10.2013 Page 10 of 10 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 31.10.2013