Delhi District Court
Bses Yamuna Power Ltd vs . Premwati on 21 August, 2013
CC No:781/08
Police Station: Nabi Karim
U/S 135 of Electricity Act
BSES Yamuna Power Ltd Vs. Premwati
IN THE COURT OF SHRI ARUN KUMAR ARYA,
ADDITIONAL SESSIONS JUDGE, SPECIAL COURT
(ELECTRICITY), TIS HAZARI COURT, DELHI
CC No. 781/08
Unique case ID No.02402R0073652009
BSES Yamuna Power Ltd.
Having its Registered office at
Shakti Kiran Building,
Karkardooma, Delhi110032
(Through its authorized representative
Sh. C. B Sharma) ............ Complainant
Vs.
Prem Wati
R/o 6555, gali Punjabian
Qutub Road, Nabi Karim
Paharganj, Delhi ................ Accused
Date of Institution .............. 25.11.2008
Judgment reserved on .............. 13.08.2013
Date of Judgment .............. 21.08.2013
Final Order .............. Acquitted
JUDGMENT
1. The complainant is a company incorporated under the Page 1 of 11 (Arun Kumar Arya) Ld. ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 21.08.2013 CC No:781/08 Police Station: Nabi Karim U/S 135 of Electricity Act BSES Yamuna Power Ltd Vs. Premwati 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 6555, gali Punjabian, Kutub Road, Nabi Karim, Paharganj, 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 02.09.2008 at 12:10PM, a team comprising of (i) Sh. S.C. Gupta (Senior Manager), (ii) Sh. Vijay Kr. Pal (Engineer), (iii) Sh. Raj Kumar and (iv) Sh. Bharat Bhushan (Both lineman) along with CISF and local police officials conducted a inspection / raid was conducted as per the direction of DGM at premises bearing No. 6555, gali Punjabian, Kutub Road, Nabi Karim, Paharganj, Delhi. At that time, inspecting team found that accused was indulging in direct theft of electricity from the service cable of the complainant company / licensee through two core aluminum cables Page 2 of 11 (Arun Kumar Arya) Ld. ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 21.08.2013 CC No:781/08 Police Station: Nabi Karim U/S 135 of Electricity Act BSES Yamuna Power Ltd Vs. Premwati for the purpose of domestic consumption. Illegal material i.e. two core aluminum wire size 6 mm, 3 meter black in colour were seized. The reports and documents were not signed by the accused at the spot. The accused was booked for the offence of direct theft of electricity.
Photographer took the videography at the site. The total connected load which was illegally used by the accused for commercial purpose was assessed by the inspection team as 9.970KW. The accused was booked for the offence of direct theft of electricity.
3. Subsequently, theft assessment bill in the sum of Rs.2,24,633/ 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 of the Electricity Act 2003 by my ld. predecessor vide order dated 16.01.2009 after recording the pre - summoning evidence. Notice U/S 251 Cr.PC of offence was framed against the accused by my ld. predecessor by order dated 08.10.2009 to which accused pleaded not guilty and claimed trial.
Page 3 of 11 (Arun Kumar Arya)
Ld. ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 21.08.2013 CC No:781/08 Police Station: Nabi Karim U/S 135 of Electricity Act BSES Yamuna Power Ltd Vs. Premwati
5. Complainant in support of its case examined 2 witnesses namely PW 1 Sh. Rajeev Ranjan (Authorized representative) and PW 2 Sh. S. C. Gupta (Senior Manager).
PW1 Sh. Rajeev Ranjan deposed that the present complaint Ex. CW 1 / A was filed by Sh. C. B. Sharma. He was authorized vide letter of authority in his favour Ex. PW 1/A. PW 2 Sh. S.C. Gupta, Senior Manager deposed that on 02.09.2008 at about 12.10 pm he along with (i) Sh. Vijay Kumar Pal (Engineer), (ii) Sh. Raj Kumar and (iii) Sh. Bharat Bhushan (Both lineman) along with CISF personnel a raid mass was conducted at premises bearing No. 6555, gali Punjabian, Kutub Road, Nabi Karim, Paharganj, Delhi. At that time, no meter was found at site and inspecting team found that accused was indulging in direct theft of electricity by tapping BSES service cable through illegal two core cable. The total connected load of 9.97 KW was being used by the accused 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 X. Necessary photographs were taken of the mode of theft and Page 4 of 11 (Arun Kumar Arya) Ld. ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 21.08.2013 CC No:781/08 Police Station: Nabi Karim U/S 135 of Electricity Act BSES Yamuna Power Ltd Vs. Premwati connected load, CD (Ex. CW 2/G). All the documents were prepared at the spot and offered to the accused present at site but she refused to sign and also did not allow to paste the same.
6. In her statement recorded u/s 313 Cr.PC, accused has denied the allegation against her. She also stated that no raid was conducted at her premises. She was falsely implicated in the present case.
7. Ld. Counsel for the accused has argued that no raid was conducted at the premises belonging to the accused and the case is purely based on hearsay evidence.
PW 2 Sh. S.C. Gupta, in his cross examination admitted that no application with respect to the present case was submitted in any of the Police Station. Preparation of the inspection report was not photographed / videographed.
There was no written permission with him to conduct the said raid. It was further contended that no independent person was joined at the time of seizure of case property. The accused refused to put his signatures on the inspection reports however, his refusal was not recorded in the videography. They had not checked the identity Page 5 of 11 (Arun Kumar Arya) Ld. ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 21.08.2013 CC No:781/08 Police Station: Nabi Karim U/S 135 of Electricity Act BSES Yamuna Power Ltd Vs. Premwati proof of persons present at site, at the time of inspection.
It was further contended that in complaint it was mentioned that videography was taken at site and in the inspection report and as per deposition of PW 2 that photographs were taken at site. Witness Sh. Raj Kumar and Sh. Bharat Bhushan were also the members of the raiding team but they did not sign any of the reports except the seizure memo. Company has not examined Sh. Vijay Kumar Pal (Engineer), Sh. Raj Kumar and Sh. Bharat Bhushan (both lineman). Non - examination of these witnesses who were members of the raiding team in a criminal trial, 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, At that time, no meter was found at site and inspecting team found that accused was indulging in direct theft of electricity from BSES service cable through illegal two core cable. The total connected load of 9.97 KW was being used by the accused for domestic purpose. Page 6 of 11 (Arun Kumar Arya)
Ld. ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 21.08.2013 CC No:781/08 Police Station: Nabi Karim U/S 135 of Electricity Act BSES Yamuna Power Ltd Vs. Premwati As per deposition of PW 2 Sh. S. C. Gupta, who 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.
Sh. Vijay Kumar Pal (Engineer), Sh. Raj Kumar and Sh. Bharat Bhushan (both lineman) who were member of the raiding team 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. The accused was deprived of his right of cross examination of these witnesses in order to check the veracity of the testimony of PW 2.
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 Page 7 of 11 (Arun Kumar Arya) Ld. ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 21.08.2013 CC No:781/08 Police Station: Nabi Karim U/S 135 of Electricity Act BSES Yamuna Power Ltd Vs. Premwati not examined to prove the actual occupant of the premises.
11. It was not mentioned in the inspection report whether the accused was occupying the premises in the capacity of tenant or owner. 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. In complaint it was mentioned that videography was taken at site and in the inspection report and as per deposition of PW 2 photographs were taken at site which is totally contradictory and weakens the case of the company.
12. No photographer is examined in this case 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 CD Ex. CW 2/D was also not proved by the company as per 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 8 of 11 (Arun Kumar Arya) Ld. ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 21.08.2013 CC No:781/08 Police Station: Nabi Karim U/S 135 of Electricity Act BSES Yamuna Power Ltd Vs. Premwati in the designated Special Court. The non filing of complaint in stipulated time, gives ample time to the company to make amends and embellishment in the complaint. This inordinate delay in filing the complaint which goes to the root of the matter.
14. 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.
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 Authorised 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. A special Act created always have special measures to avoid its misuse by the investigating agencies, so bearing in mind Page 9 of 11 (Arun Kumar Arya) Ld. ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 21.08.2013 CC No:781/08 Police Station: Nabi Karim U/S 135 of Electricity Act BSES Yamuna Power Ltd Vs. Premwati 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 PW2 has 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 dated 02.09.2008.
18. As per the criminal jurisprudence, the prosecution has to prove its case beyond reasonable doubt and has to travel a long distance between 'may be true' and 'must be true' by legal, reliable and unimpeachable evidence before an accused can be convicted. The company has failed to travel this distance. Page 10 of 11 (Arun Kumar Arya)
Ld. ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 21.08.2013 CC No:781/08 Police Station: Nabi Karim U/S 135 of Electricity Act BSES Yamuna Power Ltd Vs. Premwati 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 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 complainant company after expiry of period of appeal. File be consigned to record room.
Announced & Dictated
in open court (Arun Kumar Ayra)
ASJ/Special Court (Elect.)
Tis Hazari/Delhi/21.08.2013
Page 11 of 11 (Arun Kumar Arya)
Ld. ASJ / Special Court (Electricity)
Tis Hazari Courts, Delhi / 21.08.2013