Delhi District Court
Bypl vs . Amar Singh on 10 March, 2014
CC No: 844/07
Police Station: Prashad Nagar
U/S 135 of Electricity Act
BYPL Vs. Amar Singh
IN THE COURT OF SHRI ARUN KUMAR ARYA,
ADDITIONAL SESSIONS JUDGE, SPECIAL COURT
(ELECTRICITY), TIS HAZARI COURT, DELHI
CC No. 844/07
Unique case ID No.02402R0058912009
BSES Yamuna Power Ltd.
Having its Registered office at
Shakti Kiran Building,
Karkardooma, Delhi110032
(Through its authorized representative
Sh. C. B. Sharma) ............ Complainant
Vs.
Amar Singh
House No. 5894, Block No. 4,
Gali no. 3, Dev Nagar,
Karol Bagh, New Delhi ................ Accused
Date of Institution ........... 16.10.2007
Judgment reserved on ........... 06.03.2014
Date of Judgment ........... 10.03.2014
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 16 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 10.03.2014 CC No: 844/07 Police Station: Prashad Nagar U/S 135 of Electricity Act BYPL Vs. Amar Singh 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 bearing House No. 5894, Block No. 4, Gali no. 3, Dev Nagar, Karol Bagh, New Delhi where the offence has been allegedly committed by the accused. The present case was filed through Sh. C. B. Sharma, Authorized Representative. Thereafter, Sh. Rajeev Ranjan and later on Sh. Mukesh Sharma was substituted as authorized representative by order of this court.
2. As per complaint, on 29.12.2006, a team comprising of Sh. Ram Pher (DM), Sh. Veer Sen (Engr.), Sh. Ram Sant and Sh. Krishan Kumar (both lineman) conducted a inspection / raid at premises bearing House No. 5894, Block No. 4, Gali no. 3, Dev Nagar, Karol Bagh, New Delhi. At that time, inspecting team found that accused was indulging in direct theft of electricity by using the electricity illegally by tapping through BSES service line through illegal wires and the entire load of the premises was running through illegal tapping done by the accused person. One meter no. E8118285 was found installed at the first floor of the inspected premises and the electricity of first floor was being used by this meter and the electricity Page 2 of 16 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 10.03.2014 CC No: 844/07 Police Station: Prashad Nagar U/S 135 of Electricity Act BYPL Vs. Amar Singh on the rest of the floor was being used directly through the tapping done by the accused. The accused was using the load of 16.487 nd rd th KW / NX / DT. The entire load of the 2 , 3 and 4 floor of the inspecting premises was running through tapping done by the accused for commercial purpose.
Necessary photographs showing the irregularities were taken by the members of the raiding team. As per procedure the raiding team called Sh. Preetam Singh Manager (Enforcement) at the site and in his presence the material i.e. two pieces of black colour PVC copper wire of 7/20 SWG was seized which was used for direct theft of electricity. The accused was booked for the offence of direct theft of electricity.
3. Subsequently, theft assessment bill in the sum of Rs.7,22,301/ 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 22.10.2007 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 Page 3 of 16 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 10.03.2014 CC No: 844/07 Police Station: Prashad Nagar U/S 135 of Electricity Act BYPL Vs. Amar Singh framed against the accused by ld. predecessor court vide order dated 03.05.2010 to which accused pleaded not guilty and claimed trial.
5. Complainant in support of its case examined 3 witnesses namely PW 1 Sh. Rajeev Ranjan (Authorized representative), PW - 2 Sh. Veer Sen Singh and PW - 3 Sh. Preetam Singh.
PW1 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. PW1/A. PW2 Sh. Veer Sen Singh, Engineer deposed that on 29.12.2006 he along with Sh. Ram Pher (Dy. Manager), Sh. Ram Sant and Sh. Krishan Kumar (both lineman) had conducted a raid at the premises bearing House No. 5894, Block No. 4, Gali no. 3, Dev Nagar, Karol Bagh, New Delhi.
At the time of inspection, electricity was been used Amar singh. No meter was found at the site. One meter bearing no. 8118285 was found installed in the premises at first floor but the supply in the remaining portion second, third and fourth floor supply was being used directly. The accused was using the electricity for running the sewing machines.
The total connected load of 16.487 KW /NX was being used by Page 4 of 16 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 10.03.2014 CC No: 844/07 Police Station: Prashad Nagar U/S 135 of Electricity Act BYPL Vs. Amar Singh the accused. The inspection report (Ex. CW 2/1), load report (Ex. CW 2/2) and meter details report (Ex. CW 2/6) bore his signatures at point A except the load report.
Sh. Krishan Kumar took photographs (Ex. CW2/5, 24 in number). They also called Sh. Preetam Singh at the spot for seizing the case property. All the documents were prepared at the spot and offered to the representative of the accused at site but he refused to receive the same.
PW - 3 Sh. Preetam Singh, deposed that on 29.12.2006, he received a telephonic call from team leader Sh. Ram Pher for seizing the material. He reached the premises in question and seized the case property. Seizure memo is (Ex. CW 2/3).
6. In his statement recorded U/S 313 Cr.P.C, accused has denied the allegations and he pleaded ignorance about the raid conducted in the premises as he was not present at site on 29.12.2006.
7. Sh. Jitender, Ld. Counsel for the accused has argued that accused is falsely implicated in this case and company failed to bring any incriminating material against him.
During cross examination PW 1 Sh. Rajeev Ranjan, he Page 5 of 16 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 10.03.2014 CC No: 844/07 Police Station: Prashad Nagar U/S 135 of Electricity Act BYPL Vs. Amar Singh admitted that he has no personal knowledge about the present raid. He inspire the knowledge about the complaint from the documents. Complaint is not drafted in his presence.
PW 2 admitted that he received an information regarding the theft in question from his office from Manager Enforcement. On a particular question he admitted that he has received the message or information regarding theft from Manager Enforcement apart from this he had no personal knowledge or documentary information / complaint regarding the theft in premises in question.
He did not call any neighborers or persons present at that time. He could not tell whether the accused Amar Singh was present or not. He only inquired from the workers working at the second floor. He could not tell as to how many workers were present at the time of inspection. All the workers / occupants had not shown any resentments or objection regarding the photograph.
He had seen the commercial work "Sewing Work" at 2nd and 3rd floor. He had inquired about the occupants of the Ground floor as well as from the first floor about the user of the electricity from the meter. He had also inquired from the boy that who was residing at the Ground floor. He also admitted that his duty was to know and Page 6 of 16 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 10.03.2014 CC No: 844/07 Police Station: Prashad Nagar U/S 135 of Electricity Act BYPL Vs. Amar Singh to ascertain the complete details about the occupants who were using electricity in the premises from ground floor to fourth floor.
When raid was conducted accused Amar Singh was present there. He had not annexed any document with the complaint to establish that Amar Singh was using the premises. He requested the public persons to join the raiding party but none replied.
During cross examination PW 3 Sh. Preetam Singh admitted that he was not the member of the inspecting team.
Ld. counsel Sh. Jitender, argued that inspected team did not have any written authority. He also argued that company failed to prove the photographs as same were captured by Sh. Krishan Kumar who was lineman and never examined by the company.
No signature of any public witness was obtained on the inspection reports. There was no evidence on record which connect the theft with the accused or his premises. No independent person was joined at the time inspection.
Witness Sh. Ram Sant and Sh. Krishan Kumar (both lineman) were also the member of the raiding team but they did not sign any of the reports.
Name of Sh. Preetam Singh was not mentioned in the list Page 7 of 16 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 10.03.2014 CC No: 844/07 Police Station: Prashad Nagar U/S 135 of Electricity Act BYPL Vs. Amar Singh of witnesses but was examined by the company and he has only signed on the seizure memo which clearly show that seizure memo was prepared at the office and not at the spot.
Company had not examined witnesses Sh. Ram Pher, Sh. Ram Sant and Sh. Krishan Kumar, who were also the members of the raiding team. It was requested that the accused was falsely implicated by the company and is entitled to be acquitted in this case.
Per contra, Counsel for company has argued that 29.12.2006, an inspection was carried out at the premises bearing House No. 5894, Block No. 4, Gali no. 3, Dev Nagar, Karol Bagh, New Delhi. Accused was indulging in direct theft of electricity by using the electricity directly and illegally by tapping through BSES service line through illegal wires and the entire load of the premises was running through illegal tapping done by the accused person. One meter no. E8118285 was found installed at the first floor of the inspected premises and the electricity of first floor was being used by this meter and the electricity on the rest of the floor was being used directly through the tapping done by the accused. The accused was using the load of 16.487 KW / NX / DT.
The accused was booked for offence of direct theft of Page 8 of 16 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 10.03.2014 CC No: 844/07 Police Station: Prashad Nagar U/S 135 of Electricity Act BYPL Vs. Amar Singh electricity. As per depositions of the company's witnesses, 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.
Witnesses Sh. Ram Pher, Sh. Ram Sant and Sh. Krishan Kumar 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 witnesses.
nd PW 2 had seen the commercial work "Sewing Work" at 2 and 3rd floor. He had inquired about the occupants from the persons at ground floor as well as from the first floor however none was examined. He inquired from the boy about the occupants but he was not examined in court. Despite this, he did not recover any identity proof of the above persons of the accused and did not make them as a witness in this case to prove the case.
The company did not make the workers as a witness or checked their identity or proved on record that they were the workers of the accused.
Page 9 of 16 (Arun Kumar Arya)
ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 10.03.2014 CC No: 844/07 Police Station: Prashad Nagar U/S 135 of Electricity Act BYPL Vs. Amar Singh The company did not procure the documents pertaining to occupancy, tenancy or the ownership of the inspected premises. No independent witness was examined to prove the occupancy of premises by accused. No inquiry was made as to who was the owner or who was in the occupation of the premises in question. This type of evidence tendered by witnesses can be simply termed as "Hearsay Evidence" and has no evidentary value. Company has not examined that person who disclosed the name of the accused. Reference is placed on judgment of Hon'ble High Court of Delhi in Crl. L.P No. 598/2013 titled as BYPL Vs. Guddu dated 21.01.2014.
Sh. Ram Sant and Sh. Krishan Kumar (both lineman) who were the members of the raiding team and in their presence the inspection was carried out did not sign on any of the documents. 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. The non signing of the inspection report by the other members of raiding team casts doubt on the report itself.
Non - mentioning the name of Sh. Preetam Singh in the list of witnesses clearly creates suspicion on the complaint itself. Page 10 of 16 (Arun Kumar Arya)
ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 10.03.2014 CC No: 844/07 Police Station: Prashad Nagar U/S 135 of Electricity Act BYPL Vs. Amar Singh This inspection was carried out in the year 2007, 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 failed to do and no such authority was placed on record either.
As per Section 135 sub clause (3) & (4) of the Electricity Act, 2003, the occupant of the place of search or any person on his behalf shall remain present during the search and list of all things seized in search shall be prepared and delivered to such occupant or person who shall sign the list. It was further contended that no independent person / witness was joined at the time of seizure of case property which was incumbent on their part to prove their case. Thus, the company has failed to comply Section 135 sub clause (3) & (4) of Electricity Act in respect to search and seized of case property in the present case. Reliance is placed on the judgment of Hon'ble High Court of Delhi in CRL.A. 438/2012 & Crl. M. B. 754/2012 titled as Manoj Kumar Vs. BSES Rajdhani Power Ltd. dated 14.05.2013.
Sh. Krishan Kumar (lineman) took photographs at the site Page 11 of 16 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 10.03.2014 CC No: 844/07 Police Station: Prashad Nagar U/S 135 of Electricity Act BYPL Vs. Amar Singh but he was not examined in court. As per judgment of Hon'ble High Court in 2012 (4) JCC 2713 titled as BSES Rajdhani Power Ltd. Vs. Sunheri & Ors . , the non - examination of photographer was held to be fatal to the case of the company. The photographs (Ex. CW 2/5) 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.
Site plan which is a part of Inspection report is silent on the aspect that same was prepared by Sh. Ram Pher, who was not examined by the company. The company was under obligation to prove this site plan which they failed to do so.
As per para 10 of the complaint it is clearly mention that "necessary photographs showing the irregularities, were taken by the members of the inspecting team. The photographs and the Compact Disc containing the photographs at the time of the inspection / raid are annexed herewith as Annexure - E to E1", however no CD is placed on record.
Team members mentioned in the reports that "Consumer refused to sign the report", however company never proved that who was the consumer at the time of inspection who refused to sign the Page 12 of 16 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 10.03.2014 CC No: 844/07 Police Station: Prashad Nagar U/S 135 of Electricity Act BYPL Vs. Amar Singh report.
PW 1 stated during examination - in - chief the amount of theft as Rs.1,11,988/ instead of Rs. 7,22,301/ which against creates doubt on the theft bill also.
Witness PW 2 Sh. Veer Sen Singh did not disclose the mode of theft which is necessary on his part to prove the theft against the accused.
During cross examination on 27.03.2013, PW 2 Sh. Veer Sen Singh specifically answered that he cannot tell whether accused Amar Singh was present at the time of inspection, however, on 10.05.2013 he stated that accused Amar Singh was present when he conducted the inspection. There is variance in his statement regarding presence of accused at spot which creates suspicion on his deposition.
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 Page 13 of 16 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 10.03.2014 CC No: 844/07 Police Station: Prashad Nagar U/S 135 of Electricity Act BYPL Vs. Amar Singh 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 1/2 remains unproved on record.
The inspection was carried out on 29.12.2006 and company has filed the case in the court on 16.10.2007 after a period of 9 months which remains unexplained on their part. The company could have filed complaint against the accused with the police to elucidate the entire facts of the case which the police could have done in more meaningful manner.
8. 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 Page 14 of 16 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 10.03.2014 CC No: 844/07 Police Station: Prashad Nagar U/S 135 of Electricity Act BYPL Vs. Amar Singh 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.
Although conviction can be based on the testimony of a single witness which seems trustworthy and reliable. In the present case, the testimony of company's witnesses has material contradictions. It is relevant to note that in all the witness failed to prove that accused was the user of the electricity by positive evidence. Thus company failed to discharge its initial burden to prove beyond reasonable doubt that accused was in possession / user of the inspected premises. Reliance is placed on the judgment of own Hon'ble High Court in in CRL.A. 438/2012 & Crl. M. B. 754/2012 titled as Manoj Kumar Vs. BSES Rajdhani Power Ltd. dated 14.05.2013. 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 itself.
In view of the foregoing reasons, company has failed to prove its case against the accused beyond reasonable doubt, he is accordingly Page 15 of 16 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 10.03.2014 CC No: 844/07 Police Station: Prashad Nagar U/S 135 of Electricity Act BYPL Vs. Amar Singh 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 29.12.2006 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/10.03.2014 Page 16 of 16 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 10.03.2014