Delhi District Court
Bses Yamuna Power Ltd vs . Irshad on 9 April, 2014
CC No: 263/09
Police Station: Kotwali
BSES Yamuna Power Ltd Vs. Irshad
IN THE COURT OF SHRI ARUN KUMAR ARYA,
ADDITIONAL SESSIONS JUDGE, SPECIAL COURT
(ELECTRICITY), TIS HAZARI COURT, DELHI
CC No. 263/09
Unique case ID No.02401R0361832009
BSES Yamuna Power Ltd.
Having its Registered office at
Shakti Kiran Building,
Karkardooma, Delhi110032
(Through its authorized representative
Sh. C. B. Sharma) ............ Complainant
Vs.
Irshad (User) (near BSES Pole no. BSES / DRG / A903)
House no. 1637, First Floor,
Gali Andheri Pahari Bhojla,
Delhi - 110006 ................ Accused
Date of Institution ............. 28.07.2009
Judgment reserved on .............. 25.03.2014
Date of Judgment .............. 09.04.2014
Final Order .............. Acquitted
JUDGMENT
1. The complainant company (to be referred as "company" hereinafter) i.e. BSES Yamuna Power Ltd has filed the Page 1 of 14 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 09.04.2014 CC No: 263/09 Police Station: Kotwali BSES Yamuna Power Ltd Vs. Irshad present complaint case under section 135 read with section 151 of the Electricity Act, 2003 (hereinafter referred to as "Act) against the accused praying that accused be summoned, tried and punished as per law with a further prayer to determine the civil liability of the accused as per provisions of Section 154 (5) of the Act.
2. The case of the company in brief is that on 01.05.2009, on the direction of Sh. R. K. Aggarwal, an inspection team of company comprising of Sh. J. B. Singh (Senior Manager), Sh. Satish Kumar and Sh. Dinesh Singh (both DET) raided the premises of accused situated at House no. 1637, First Floor, Gali Andheri Pahar Bhojla, Delhi - 110006 (hereinafter referred to as "subject premises") and it was revealed on inspection that accused Irshad was found indulging in direct theft of electricity and no meter was found at site. The electricity / energy was directly tapped / drawn from the service line by black copper wire.
3. It is further mentioned in the complaint that there was a total connected load of 8.853 KILO WATT (in short KW), which was being used by the accused through artificial means and through the means not authorized by the company. The load was reportedly used by the accused for domestic purpose. That the necessary photographs of the connected load and mode of theft were taken at Page 2 of 14 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 09.04.2014 CC No: 263/09 Police Station: Kotwali BSES Yamuna Power Ltd Vs. Irshad the spot by the raiding team i.e. Sh. Dinesh. During the course of inspection, raiding team removed and seized the material evidence i.e. two black coloured copper wire 7/20 SWG in size and 1 mtr. in length and prepared the seizure memo at the spot.
4. 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. An assessment theft bill of Rs.1,48,422/ was raised against the accused for theft of electricity.
5. After recording the pre summoning evidence of company, the accused was summoned for the offence U/S 135 of the Electricity Act 2003 by my ld. predecessor vide order dated 01.10.2009. 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 29.04.2011 to which accused pleaded not guilty and claimed trial.
6. Complainant in support of its case examined 3 witnesses namely PW - 1 Satish Kumar (DET), PW - 2 Sh. J. B. Singh and PW
- 3 Sh. Rajeev Ranjan.
PW - 1 Sh. Satish Kumar, deposed that on 01.05.2009, at about 01:50 PM, he along with Sh. J. B. Singh (Manager) and Sh. Dinesh Kumar (Lineman) had inspected the premises bearing House no. 1637, First Floor, Gali Andheri Pahari Bhojla, Delhi - 110006. Page 3 of 14 (Arun Kumar Arya)
ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 09.04.2014 CC No: 263/09 Police Station: Kotwali BSES Yamuna Power Ltd Vs. Irshad Accused Irshad was found indulging in direct theft of electricity and using the electricity through other service line. No meter was found at site. The connected load to the tune of 8.853 KW was used for domestic 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. Photographs (Ex. CW 2/D) and CD (Ex. CW2/D1) were taken at site through digital camera.
All the reports were offered to the representative of the accused who refused to sign the same. He tried to paste the reports at site but representative of the accused did not allow to paste the same.
PW - 2 Sh. J. B. Singh, deposed that on 01.05.2009, at about 01:50 PM, he along with Sh. Satish Kumar, (DET) and Sh. Dinesh Kumar (Lineman) had inspected the premises bearing House no. 1637, First Floor, Gali Andheri Pahari Bhojla, Delhi - 110006 and deposed on lines of PW 1 Sh. Satish Kumar.
PW - 3 Sh. Rajeev Ranjan deposed that the present complaint Ex.CW1/A was filed by Sh. C. B. Sharma. He was authorized vide letter of authority in his favour Ex. PW3/A. In his statement recorded U/S 313 Cr.P.C, accused has Page 4 of 14 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 09.04.2014 CC No: 263/09 Police Station: Kotwali BSES Yamuna Power Ltd Vs. Irshad denied the allegations and he submits that he was never indulged in any theft of electricity and falsely implicated in the present case.
7. Ld. Counsel Sh. Kshitiz Mahipal, Adv. for the accused has argued that accused is falsely implicated in this case and there is no incriminating evidence against him.
PW 1 Sh. Satish Kumar, admitted during his cross examination that he did not know whether he was authorized to inspect the premises. Accused is the owner of the ground and first floor. He did not check the ownership document of the ground and first floor. Photographs were not taken by him, the same were taken by lineman. The theft was committed from pole no. A903, but he could not tell the exact distance between pole and the premises.
Theft was being committed from the bus bar box installed in the premises and the illegal wire was connected in the bus bar, however the fact that the theft was being committed from the bus bar was not recorded in the inspection report. There is no photograph on the record showing the wire which is coming from the cable and connecting in the bus bar. He did not remember whether he inspected the first floor of the premises in question. sNo police personnel were called at the spot for assistance.
During cross examination PW 2 admitted that on the oral Page 5 of 14 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 09.04.2014 CC No: 263/09 Police Station: Kotwali BSES Yamuna Power Ltd Vs. Irshad instructions of Sh. R. K. Aggarwal, he visited the premises in question. One meter was installed in the premises but it was not in the name of accused. He did not know who was the registered consumer of this meter. He did not remember of the commercial activity going on at the ground floor. No commercial meter installed at the ground floor and there is no commercial activity at the ground floor. He did not know whether the CRN number of the meter. He had not mentioned that he had inspected the back portion of ground floor and some portion of the first floor. Photographs were taken by Sh. Dinesh Singh who was the team member.
He did not check or seize any ownership documents. He also did not know the number of families residing at the premises in question. No photograph of pole no. A903 were taken. No photographs was showing that the service cable was entering the subject premises from pole no. A903. The service cable was not connected to any meter. He had not seized the alleged yellow service cable from which the illegal wire was connected for the direct theft. He had not filed the complaint against the accused within 2 days / 48 hours as per DERC regulation in the designated Electricity Court. He did not remember whether the photograph mark X belong to the premises of accused.
Page 6 of 14 (Arun Kumar Arya)
ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 09.04.2014 CC No: 263/09 Police Station: Kotwali BSES Yamuna Power Ltd Vs. Irshad PW 3 during cross examination admitted that he has no personal knowledge of the case. He was not the member of the inspection team. He filed the complaint on the basis of official records.
Witness Sh. Dinesh who was the member of the raiding team and also signed on the entire report was not examined by the company.
The yellow colour wire which was photographed in the photographs Ex. CW Ex. CW 2/D at mark X1 was not brought to the court.
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 was indulging in direct theft of electricity from the service line by black copper wire. Accused used the load to the tune of 8.853 KW for domestic purpose. Necessary photographs were taken by Sh. Dinesh to the possible extent. Illegal material was removed and seized by the member of the raiding team.
As per deposition of PWs, 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 Page 7 of 14 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 09.04.2014 CC No: 263/09 Police Station: Kotwali BSES Yamuna Power Ltd Vs. Irshad adduced on record and arguments advanced at bar by counsel for parties.
The company failed to examine Sh. Dinesh who was the member of the raiding team, also signed on the entire inspection report and was cited in the list of witnesses. No explanation has been assigned for the non examination of this witness.
As per deposition of PW 1 and PW 2 documents were offered to the representative of the accused but during cross examination of both witnesses and as per para "7" of the complaint, reports offered to the accused who refused to sign the same. Such type of variance in the statements of both witnesses regarding presence of accused at spot raises suspicion on their testimonies.
"In the complaint designation of Sh. Dinesh Singh was mentioned as DET (Diploma Engineer Trainee) but as per deposition of PW 1 and PW 2 Sh. Dinesh Singh was Lineman.
As per complaint, site plan / depositions of PW 1 and PW 2 theft was going on the FF of the premises, however, as per inspection report page no. 3 DT supply found running at GF and FF. This creates doubt over the exact location of direct theft.
Site plan prepared by the member of the raiding team was required to be proved specifically however the same was not done. Page 8 of 14 (Arun Kumar Arya)
ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 09.04.2014 CC No: 263/09 Police Station: Kotwali BSES Yamuna Power Ltd Vs. Irshad The company was under obligation to prove this site plan which they failed to do so.
The yellow colour wire which was shown in the photographs Ex. CW 2/D at point X1 was not seized by the company which was mandatory on their part as theft was going with the help of this yellow colour wire.
Company had not taken the photograph of the service cable which was entering the premises in question from pole no. A903. The members of the inspection team had not seized the service cable from which the illegal wire was connected to abstract energy. Company had not taken the photograph of pole no. A903.
As per deposition of PW 1 accused Irshad was found indulged in direct theft of electricity through "other service line" and as per deposition of PW 2 accused used the electricity through existing service line. The name of that "other user" was not mentioned in the complaint, he was not cited as a witness.
As per complaint inspection was carried out on the direction of Sh. R. K. Aggarwal, however witnesses of the company never disclosed this fact before the court.
10. Photographs were taken by Sh. Dinesh Kumar, he was not examined by the company. As per the recent judgment of Hon'ble Page 9 of 14 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 09.04.2014 CC No: 263/09 Police Station: Kotwali BSES Yamuna Power Ltd Vs. Irshad 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.
11. 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 28.07.2009 after 1 ½ 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).
12. 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 Page 10 of 14 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 09.04.2014 CC No: 263/09 Police Station: Kotwali BSES Yamuna Power Ltd Vs. Irshad 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.
13. 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 thereby violating the aforesaid regulation. Even the police officials who had joined the raid were not examined as witnesses.
14. The present complaint was filed by Sh. C. B. Sharma stated to be authorized representative of company but later on, other Page 11 of 14 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 09.04.2014 CC No: 263/09 Police Station: Kotwali BSES Yamuna Power Ltd Vs. Irshad 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 1/A remains unproved on record.
15. 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. Page 12 of 14 (Arun Kumar Arya)
ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 09.04.2014 CC No: 263/09 Police Station: Kotwali BSES Yamuna Power Ltd Vs. Irshad The name of accused is given in the inspection report as the user of the electricity. In order to prove the guilt of accused, the company is required to prove the facts as under:
(a) Whether the subject premises were raided by the officials of the company on 01.05.2009.
(b) Whether the theft of electricity was going on at that time .
(c) Whether accused was the occupying the inspected premises at the time inspection.
The status of accused was not mentioned in the inspection report as to how he was occupying the subject premises. No evidence is led to prove whether accused was owner / tenant / occupant or unauthorized occupant of the subject premises. 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.
No signature of any public witness were obtained on the inspection report. It was also not proved by the company as to why the police help was not taken when accused did allow the members of raiding team to paste the reports at site. No independent person was joined at the time inspection.
16. In the present case, company has not proved their case Page 13 of 14 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 09.04.2014 CC No: 263/09 Police Station: Kotwali BSES Yamuna Power Ltd Vs. Irshad by positive evidence as the testimony of PW - 1 and PW - 2 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. There is no material evidence on record which connect the theft with the accused.
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 01.05.2009 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/09.04.2014 Page 14 of 14 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 09.04.2014