Delhi District Court
Bses Yamuna Power Ltd vs . Rajender Kumar on 21 December, 2013
CC No: 501/08
Police Station: Nabi Karim
U/S 135 of Electricity Act
BSES Yamuna Power Ltd Vs. Rajender Kumar
IN THE COURT OF SHRI ARUN KUMAR ARYA,
ADDITIONAL SESSIONS JUDGE, SPECIAL COURT
(ELECTRICITY), TIS HAZARI COURT, DELHI
CC No. 501/08
Unique case ID No.02402R0844692008
BSES Yamuna Power Ltd.
Having its Registered office at
Shakti Kiran Building,
Karkardooma, Delhi110032
(Through its authorized representative
Sh. C. B Sharma) ............ Complainant
Vs.
Rajender Kumar
A525 Krishna Basti,
Amar Puri, Nabi Karim
Delhi ................ Accused
Date of Institution ..............18.07.2008
Judgment reserved on .............. 17.12.2013
Date of Judgment .............. 21.12.2013
Final Order .............. Acquittal
JUDGMENT
1. The complainant is a company incorporated under the Companies Act, 1956 (to be referred as "company" hereinafter) Page 1 of 13 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 21.12.2013 CC No: 501/08 Police Station: Nabi Karim U/S 135 of Electricity Act BSES Yamuna Power Ltd Vs. Rajender Kumar 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 A525 Krishna Basti, Amar Puri, Nabi Karim, 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 16.02.2008 at 12:30 PM, as per direction of manager Enf. a mass raid was conducted at the premises bearing No. A525 Krishna Basti, Amar Puri, Nabi Karim, Delhi. A team comprising of Sh. V. K. Vimal (AM), Sh. Vineet Kumar (DET), Sh. K. K. Sharma and Sh. Hement Kumar (both lineman) along with CISF and Delhi Police Staff of Sh. Mahavir Singh H/C Thana Nabir Karim.
3. At that time, inspecting team found that user was indulging in direct theft of electricity through illegal wire by tapping the old service cable of BSES supply. Supply was being used on ground floor and first floor for domestic purpose directly. The illegal tapping wire and s/cable was removed from site and seized in poly bag. The Page 2 of 13 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 21.12.2013 CC No: 501/08 Police Station: Nabi Karim U/S 135 of Electricity Act BSES Yamuna Power Ltd Vs. Rajender Kumar inspection / raid necessary photo / videography recording showing the irregularities was taken by Sh. Sunil from M/s Arora Photo Studio. The total connected load which was illegally used by the accused was 6.446 KW/ DX/ DT. The accused was booked for the offence of direct theft of electricity.
4. Subsequently, theft assessment bill in the sum of Rs.1,04,105/ was raised against the accused. On the failure of the accused to deposit the same, present complaint was filed against the accused.
5. The accused was summoned U/S 135 of the Electricity Act 2003 by my ld. predecessor vide order dated 19.08.2008 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 16.11.2009 to which accused pleaded not guilty and claimed trial.
6. Complainant in support of its case examined 2 witnesses namely CW 1 Sh. Rajeev Ranjan (Authorized Representative) and PW - 2 Sh. V. K. Vimal.
PW - 1 Sh. Rajeev Ranjan deposed that the present complaint Ex. CW 1 / B was filed by Sh. C. B. Sharma. He was Page 3 of 13 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 21.12.2013 CC No: 501/08 Police Station: Nabi Karim U/S 135 of Electricity Act BSES Yamuna Power Ltd Vs. Rajender Kumar authorized vide letter of authority in his favour Ex. CW 1/A1.
PW - 2 Sh. V. K. Vimal, deposed that on 16.02.2008, at about 12:30 PM he along with Sh. Vineet Kuamr, Sh. K. K. Sharma, Sh. Hemand Kumar, Sh. Sunil (from M/s Arora Photo Studio), CISF and local police namely HC Mahavir from Police Station Nabi Karim had inspected the premises. Accused Rajender Kumar was indulging in direct theft of electricity through illegal wire tapping from old service cable of BSES LT supply. The supply was used at ground floor and first floor for the purpose of domestic use for a tune of 6.446 KW. No meter was at site.
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. Still videography was done on his instructions to cover the mode of theft and connected load to the possible extent and CD (Ex. CW 2/D).
The inspection report, load report and seizure memo were offered to the representative of the accused who refused to sign the same. He identified the case property in the court. Page 4 of 13 (Arun Kumar Arya)
ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 21.12.2013 CC No: 501/08 Police Station: Nabi Karim U/S 135 of Electricity Act BSES Yamuna Power Ltd Vs. Rajender Kumar In his statement recorded U/S 313 Cr.PC, accused has denied the allegation against him. He told that 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 admitted during his cross examination that he has not shown his identity card to the accused. They could not tell whether photographs of the accused were in this video. No hindrance was created at site. One lady was present there but she did not tell her name on inquiry. Company failed to prove the relation of this lady with the accused. Theft was committed by accused by tapping a wire from the pole to the premises. Videography was not taken when accused refused to sign the documents.
Witnesses Sh. K. K. Sharma and Sh. Hemant Kumar were also the members of the raiding team but they did not sign the reports except the seizure memo. Company has not examined Sh. K. K. Sharma, Sh. Hemant Kumar and Sh. Sunil (photographer) who were the member of the raiding team. Non - examination of these witnesses who were members of the raiding team in a criminal trial, Page 5 of 13 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 21.12.2013 CC No: 501/08 Police Station: Nabi Karim U/S 135 of Electricity Act BSES Yamuna Power Ltd Vs. Rajender Kumar cause suspicion in the case of the company.
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 through illegal wire tapping from old service cable of BSES supply. The total connected load of 6.446 KW was being used by the accused for domestic purpose.
As per deposition of PW 2 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 HC Mahavir, Sh. K. K. Sharma, Sh. Hemant Kumar and Sh. Sunil (photographer) who were member of the raiding team. No explanation has been assigned for the non examination of these witnesses.
Page 6 of 13 (Arun Kumar Arya)
ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 21.12.2013 CC No: 501/08 Police Station: Nabi Karim U/S 135 of Electricity Act BSES Yamuna Power Ltd Vs. Rajender Kumar
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 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 occupancy of the accused. The accused was identified by PW 2 as the person who was present at the time of inspection however these facts are not mentioned in the inspection report. 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. Four officials signed the seizure memo however only PW 2 examined himself in the report and PW 2 did not make clear as to who seized the illegal wire.
As per deposition of PW 2 accused was present at site and no hindrance was created while conducting the raid. When reports were offered to him he refused to receive the same. His refusal was not taken in videography. The company failed to examine the lady shown in the video which could have proved to who was the Page 7 of 13 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 21.12.2013 CC No: 501/08 Police Station: Nabi Karim U/S 135 of Electricity Act BSES Yamuna Power Ltd Vs. Rajender Kumar real occupant of the premises. Company has also not mention the pole number from where the theft was committed either in the inspection report or in the complaint.
11. As per PW 2 videography was taken at site by Sh. Sunil from M/s Arora Photo Studio. 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/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.
12. 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 18.07.2008 after 5 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 Page 8 of 13 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 21.12.2013 CC No: 501/08 Police Station: Nabi Karim U/S 135 of Electricity Act BSES Yamuna Power Ltd Vs. Rajender Kumar explained. However, deliberate delay in lodging the complaint in always fatal (Sahib Singh Vs. State of Haryana AIR 1997 SC 3247.
13. 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 member of raiding team casts doubt in the inspection report.
14. 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.
15. 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: Page 9 of 13 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 21.12.2013 CC No: 501/08 Police Station: Nabi Karim U/S 135 of Electricity Act BSES Yamuna Power Ltd Vs. Rajender Kumar 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 thereby violating the aforesaid regulation. Even the police officials who had joined the raid were not examined as witnesses.
16. 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 Page 10 of 13 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 21.12.2013 CC No: 501/08 Police Station: Nabi Karim U/S 135 of Electricity Act BSES Yamuna Power Ltd Vs. Rajender Kumar 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 1/B remains unproved on record.
17. There is nothing on record to show who was the Authorized Officer competent to make this inspection. The notification dated 12.09.2007 issued by Govt. of NCT of Delhi designates the Technical officer of the level of graduate engineers and working in the post of officers and above, as 'Authorized officers' as per section 135(2)(a) of the Indian Electricity Act for the purpose of entering, inspecting, breaking open and search any place of premises in which he has reason to believe that electricity has been used unauthorizedly. The same notification designates the technical officer not below the rank of Asstt. Engineer/ Asstt. Manager as Authorized officer as per section 135 2(b) of Indian Electricity Act for the purpose of search, seizure and remove all devices used for unauthorized use of electricity. A composite reading of section 135 Electricity Act and notification dated 12.09.2007 specifies that there has to be two officers for different investigations. In the present case the work of inspection and seizure has been conducted by one officer. Page 11 of 13 (Arun Kumar Arya)
ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 21.12.2013 CC No: 501/08 Police Station: Nabi Karim U/S 135 of Electricity Act BSES Yamuna Power Ltd Vs. Rajender Kumar Although the same is not illegal in a case where sudden information is received for theft of electricity and a raid is to be organized immediately. However in the present case, there was a mass raid on the instruction of Manager Enforcement of the company in which the official of CISF and Delhi Police participated. Hence, in such a scenario, a raid conducted in this manner looses its credibility.
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 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. 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 Page 12 of 13 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 21.12.2013 CC No: 501/08 Police Station: Nabi Karim U/S 135 of Electricity Act BSES Yamuna Power Ltd Vs. Rajender Kumar 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. 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 16.02.2008 be released by the company after expiry of period of appeal.
File be consigned to record room.
Announced in open court (Arun Kumar Ayra) ASJ/Special Court (Elect.) Tis Hazari/Delhi/21.12.2013 Page 13 of 13 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 21.12.2013