Delhi District Court
Bypl vs . Rajinder Kumar on 26 November, 2013
CC No.97/07
BYPL VS. Rajinder Kumar
IN THE COURT OF SHRI ARUN KUMAR ARYA,
ADDITIONAL SESSIONS JUDGE, SPECIAL COURT
(ELECTRICITY), TIS HAZARI COURT, DELHI
CC No.97/07
Unique case ID No.02402R0071662009
BSES Yamuna Power Ltd.
Having its Registered office at
Shakti Kiran Building,
Karkardooma, Delhi-110032
Also at : Corporate, Legal and Enforcement Cell
Narwana Road, Near Saraswati Kunj,
Patparganj, Delhi-92
(Through its authorized representative
Sh. Jitender Shankar) ............ Complainant
Through : Sh. Mukesh Sharma, AR with Ld.
Counsel for the company.
Vs.
Rajinder Kumar
S/o. Ramji Lal
7146, Marwari Basti, Nabi Karim,
Pahar Ganj, Delhi. ................ Accused
Through : Sh.Nand Kishore, Adv.
Date of Institution : 07.02.2007
Judgment reserved on : 13.11.2013
Date of Judgment : 26.11.2013
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 its branches are located at Page 1 (Arun Kumar Ayra) ASJ/Special Court (Elect.) Tis Hazari/Delhi/26.11.2013 CC No.97/07 BYPL VS. Rajinder Kumar different places in Delhi. The company is the licensee for supply of electricity in major parts of Delhi, including the premises bearing no. 7146, Marwari Basti, Nabi Karim, Pahar 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 and thereafter Sh. Rajeev Ranjan and Mukesh Sharma were substituted as authorized representative by order of this court.
2. As per complaint, on 15.05.2006 at about 05:15 p.m. a team comprising of Sh. D.K.Arya (Assistant Manager)
(ii) Sh. Sanjeev Kumar (Trainee Engg.), (iii) Sh. Rajinder Singh (lineman) and (iv) Sh. Arvind Kumar (Electrician) conducted an inspection / raid at premises bearing no. 7146, Marwari Basti, Nabi Karim, Pahar Ganj, Delhi. At the time of inspection, the accused was found indulging in direct theft of electricity illegally by tapping from BSES LV mains and the entire load of the premises was running for domestic and industrial purpose. No load was running through the meter installed at the site.
The member of the company took photographs of the irregularities through digital camera. The total connected load which was illegally used by the accused was assessed by the inspection team as 4.543 KW/DX/DT and 3.830 KW/IX/DT. Sh. S.K.Gajbhiye, Business Manager was called at site and in his presence the material i.e 2 core PVC aluminum wire of 2x10 MM2 and two PVC copper wire of 3/20 SWG were seized. The accused was booked for the offence of direct theft of electricity.
Page 2 (Arun Kumar Ayra)
ASJ/Special Court (Elect.)
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CC No.97/07
BYPL VS. Rajinder Kumar
3. Subsequently, theft assessment bill in the
sum of Rs. 2,76,460/- 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 r/w Section 151 of the Electricity Act 2003 by my ld. predecessor vide order dated 26.09.2007 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 court vide order dated 15.05.2008 to which accused pleaded not guilty and claimed trial.
5. Complainant in support of its case examined four witnesses namely PW-1 Sh.Rajeev Ranjan (Authorized representative), Pw-2 Sanjeev Kumar (Trainee Engineer), PW-3 Sh.S.K.Gajbhiye (Asstt. Vice President) and PW-4 Sh.D.K.Arya ( Sr. Manager ).
PW-1 Sh. Rajeev Ranjan deposed that the present complaint Ex.CW-1/2 was filed by Sh. Jitender Shankar. He was authorized vide letter of authority in his favour Ex.PW-1/A to act, appear and plead on behalf of the company in this case.
PW- 2 Sh. Sanjeev Kumar deposed that on 15.05.2006, he was posted as a Trainee Engineer at Gandhi Market. On that day at about 5:15 PM, a team comprising of him, Sh. D.K. Arya (Assistant Manager), Sh. Rajender Singh (Line Man) and Sh. Arvind Kumar (Electrician) had conducted a raid at the premises bearing no. 7146, Page 3 (Arun Kumar Ayra) ASJ/Special Court (Elect.) Tis Hazari/Delhi/26.11.2013 CC No.97/07 BYPL VS. Rajinder Kumar Marwari Basti, Nabi Karim, Pahar Ganj, Delhi. At the time of inspection, they found that accused was found indulging in direct theft of electricity through LV mains of the company. One meter was installed at the ground floor of the premises in question, however there was no load on the above said meter. The premises in question consists of ground, 1st, 2nd and 3rd Floor. The roof of 3rd floor is made of tin shed. The supply was being used partly for the domestic purpose at Ground, 1st and 2nd Floor and partly for Industrial Purpose at 3rd floor. They found connected load to the tune of 4.543 KW for domestic purpose and 3.830 KW for the Industrial Purpose.
Accused was present at the time of inspection and was correctly identified in the court by the witness. After confirmation from the department, they found that registered consumer of the said meter was accused Rajinder Kumar. Sh. Arvind Kumar took photographs (Ex. CW-2/5 colly.) of the connected load with digital camera and true copy of the CD is Ex. CW-2/6. Inspection report Ex. CW-2/1 (colly) and seizure memo Ex. CW-2/3 were prepared by Sh. D.K. Arya and meter details report (Ex. PW-2/A) and Load report (Ex. PW-2/B) were prepared by him. All report bears his signature at point "X".
During the course of the inspection, Sh. D.K. Arya called Sh. S.K. Gajbhiye ( Business Manager ) at site who reached there and on his instruction, case property was removed, seized and sealed in a gunny bag, after preparation of seizure memo. The reports were offered to the accused who refused to sign the same. The same were also not allowed to be pasted on the premises.
Page 4 (Arun Kumar Ayra) ASJ/Special Court (Elect.) Tis Hazari/Delhi/26.11.2013 CC No.97/07 BYPL VS. Rajinder Kumar Witness correctly identified the case property i.e two core PVC aluminum of one piece of size 2X10 MM Sq. and length about 3½ mtrs. having joints at one side of red and black colour copper wire, and another wire having two pieces of size SWG of length 3mtrs. each having joints at one side of black & red colour. The wire is Ex.P1 (collectively).
PW-3 Sh. S.K. Gajbhiye deposed that on 15.05.2006 he was posted as a Manager at Gandhi Market. On the said day, at about 05.15 p.m. Sh.D.K.Arya (team leader) called him telephonically to reach at site. He reached at site and on his instruction the lineman removed the illegal wires and the same was seized vide seizure memo (Ex. CW2/3) by team leader and sealed in a gunny bag with his seal "Manager Enforcement". He correctly identified the case property (i.e wire) as Ex.P1.
PW-4 Sh. D.K. Arya, deposed on the same lines of PW-2 Sanjeev Kumar.
6. In his statement recorded u/s 313 Cr.PC, accused has denied the allegation and stated that he has been falsely implicated in the present case.
7. Ld. Counsel for the accused has argued that the case is purely based on hearsay evidence. During cross examination both PW-2 and PW-4 admitted that they did not have any written authority from senior officers for conducting the raid. At the time of removal of meter, some hindrance was created by the persons present at the site. However they did not call the police at Page 5 (Arun Kumar Ayra) ASJ/Special Court (Elect.) Tis Hazari/Delhi/26.11.2013 CC No.97/07 BYPL VS. Rajinder Kumar the time of removal of the meter. It was not mentioned in reports as to who was present at the time of inspection. Neither any documents were pasted at the premises in question nor any photograph of the accused was taken by team.
No photographs of the commercial load was taken. No pole number was mentioned in any of the photographs / documents. The red colour wire which was seized was not shown in any of the photographs. He further admitted that the wires shown in the photographs were of the other consumer and did not belong to the accused. They did not make any inquiry or filed any documentary evidence about the ownership of the premises inspected.
There is no material evidence on record which connect the theft with the accused. No independent person was joined at the time inspection. The local police was also not informed prior to conducting the raid or at the time of inspection or afterwards to seize the incriminating material. The company failed to prove the factum of occupation of accused of the inspected premises. It was contended that company had failed to prove its case 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, the accused was found indulging in direct theft of electricity illegally by tapping from BSES LV mains and the entire load of the premises was running through the illegal tapping done by the accused for domestic and industrial purpose. No load was running through the meter installed at the inspecting site. The total Page 6 (Arun Kumar Ayra) ASJ/Special Court (Elect.) Tis Hazari/Delhi/26.11.2013 CC No.97/07 BYPL VS. Rajinder Kumar connected load which was illegally used by the accused for domestic and industrial purpose was assessed by the inspection team as 4.543 KW/DX/DT and 3.830 KW/IX/DT. Sh. S.K.Gajbhiye, was called at site and in his presence the material i.e 2 core PVC aluminium wire of 2x10 MM2 and two PVC copper wire of 3/20 SWG were seized.
As per deposition of PW-2 and PW-4 who were members 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.
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 inspected premises in 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 and 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 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.
The company did not make any inquiry or filed any Page 7 (Arun Kumar Ayra) ASJ/Special Court (Elect.) Tis Hazari/Delhi/26.11.2013 CC No.97/07 BYPL VS. Rajinder Kumar documentary evidence about the ownership of the premises inspected. They failed to prove whether meter installed in the name of accused was in the capacity of owner or tenant which could have specified the occupancy of inspected premises. The company failed to prove the industrial work being carried out by the accused in the inspected premises. As per the case of company the meter in the name of accused was on the ground floor. It was incumbent upon the company to prove the occupancy of the 1 st, 2nd and 3rd floor by positive evidence.
11. As per Regulation 25 (vii) Delhi Electricity Regulatory Commission (Performance Standards Metering and Billing) Regulation, 2002, the report must be signed by each member of the joint team. Neither Sh. Rajinder Singh ( lineman ) and Sh. Arvind Kumar ( Electrician ) sign the inspection report nor they were examined by the company, though they were member of the inspecting team.
12. It was not clear as to which member of the raiding team took photographs. 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 photographer was held to be fatal to the case of the company. The CD (Ex.CW-2/6) was not proved in accordance with Section 65B of Indian Evidence Act.
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 Page 8 (Arun Kumar Ayra) ASJ/Special Court (Elect.) Tis Hazari/Delhi/26.11.2013 CC No.97/07 BYPL VS. Rajinder Kumar 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. There is nothing on record to show who was the Authorized Officer competent to make this inspection. The notification No. F.11(93)/2003/Power/ 1566 dated 17.05.2005 designates the Technical officer not below the rank of Assistant Engineer / Assistant Manager and above as to who was the competent officer to make the inspection, as per section 135(2)
(a) of the Indian Electricity Act. This non compliance leaves a doubt in the present case. However the above notification is not proved on record.
15. The present complaint was filed by Sh.
Pankaj Dhingra 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. Pankaj Dhingra, 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 Page 9 (Arun Kumar Ayra) ASJ/Special Court (Elect.) Tis Hazari/Delhi/26.11.2013 CC No.97/07 BYPL VS. Rajinder Kumar complaint Ex. Cw 1/2 remains unproved on record and no authority in his favour has been proved on record.
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 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 testimony of PW-2 as already discussed herein before, so, it shall be highly unsafe to rely on his testimony.
18. 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.
Announced in open court
(Arun Kumar Ayra)
ASJ/Special Court (Elect.)
Tis Hazari/Delhi/26.11.2013
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ASJ/Special Court (Elect.)
Tis Hazari/Delhi/26.11.2013
CC No.97/07
BYPL VS. Rajinder Kumar
CC No.97/07
BYPL VS. Rajinder Kumar
26.11.2013
Present: Sh.Mukesh Sharma, Authorized Representative for the
complainant company.
Accused on bail with Ms. Chitramal, Legal Aid Counsel Vide my separate judgment, dictated and announced in the open court, accused 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.
(Arun Kumar Arya)
ASJ/Special Court (Elect.)
Announced in open court Tis Hazari/Delhi/26.11.2013
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