Delhi District Court
Acting Through Its vs . on 3 December, 2019
IN THE COURT OF MS. REKHA
ADDITIONAL SESSIONS JUDGE, SPECIAL COURT
(ELECTRICITY), CENTRAL DISTRICT, TIS HAZARI COURT,
DELHI
Old Case No. 552/16
New case No. 326365/16
BSES Yamuna Power Ltd.,
Having its Registered office at:
Shakti Kiran Building, Karkardooma,
Delhi110032.
Acting through its
Authorized Officer
Sh. Jitender Shankar ...............Complainant Company
Vs.
Farhan
S/o Safiq Ahmed,
1225, Ground Floor,
Gali Jamun Wali,
Kala Mahal, Jama Masjid,
Daryaganj, Delhi110006 ..................Accused
Date of Institution : 12.02.2016
Date of Judgment : 03.12.2019
Final Order : Acquitted
JUDGEMENT
BYPL Vs. Farhan C NO. 326365/16 Page 1 1). The complainant company i.e. BSES Yamuna Power
Ltd. (in short BYPL) has filed the present complaint case under Section 135 and 154(5) of the Electricity Act, 2003 (hereinafter referred as 'Act') against the accused praying that accused be summoned, tried and punished as per law and for determining the civil liability of the accused.
2). The brief facts in narrow compass, relevant and necessary for the disposal of the present case are that as per the complaint, the complaint has been filed by the complainant company acting through Sr. ManageLegalMr. Jitender Shankar who was duly authorized to represent the complainant company vide power of attorney/document dated 29.08.2006. It is also stated that an inspection was carried out on 11.01.2016 at the premises bearing No. 1225, Ground Floor, Gali Jamun Wali, Kala Mahal, Jama Masjid, Daryaganj, near Govt. School, Delhi110006 (hereinafter referred as subject premises) and the BYPL Vs. Farhan C NO. 326365/16 Page 2 inspection team consisted of Sh. Ravi Kumar TiwariAsst. ManagerEnforcement, Sh. Babloo Pd.Lineman, Sh. Shirjeet ShuklaDET, Sh. Ram KumarLineman and Sh. Mahesh photographer from M/s Arora Photo Studio. It is also stated that during the inspection, it was found that subject premises was being used by accusedFarhan and no electricity meter was installed there for supply of electricity to the subject premises. It is also stated that accused was illegally using the electricity by directly tapping from the ABC conductor of the complainant, with the help of illegal wires/cable which was further connected to the connected load of the subject premises. There was a total connected load of 7.006 KW which was being connected/used for domestic purposes at ground floor of the subject premises and the officials of the complainant seized part of illegal tapping/black colour two core cable.
It is also stated that the inspection report, load report and seizure memo were prepared at the spot and same were BYPL Vs. Farhan C NO. 326365/16 Page 3 refused to be signed by the consumer. The official of the complainant got conducted videography at the spot from photographerMahesh from M/s Arora Photo Studio.
It is also stated that since it was a case of direct theft of electricity, a theft bill as per the DERC regulations and tariff order was raised by the complainant for Rs. 1,22,747/ with due date as 29.01.2016 was served upon the accused. But the accused failed to pay the same. In given fact and circumstances of the case, present complaint case has been filed.
3). The complainant company led the presummoning evidence. Vide order dt. 05.06.2017, accused had been summoned to face the trial for the offence alleged against him.
4) Vide order dated 25.11.2019, notice U/s 251 Cr.P.C. has been served upon the accused for the offence punishable U/s 135 of Electricity Act, 2003, to which accused pleaded not BYPL Vs. Farhan C NO. 326365/16 Page 4 guilty and claimed trial.
5) In this case, the complainant company has examined three witnesses, so as to prove its case namely PW1Sh. Jitender Shankar, PW02Sh. Ravi Kumar Tiwari and PW03Sh. Bablu Prasad.
6). PW1 Sh. Jitender Shankar testified that he was authorized representative of the complainant company duly authorized by the General Power of Attorney executed on 29.08.2006 by the CEO of the company, photocopy of the same was already Ex. CW1/1. Present complaint already EX. CW1/2 had been filed by him which bore his signature at point A. The complaint was true and correct.
7). PW02Sh. Ravi Kumar Tiwari testified that on 11.01.2016 at 11.50 AM, as per direction of General Manager Enforcement1, they went to check the area of Kala Mahal and BYPL Vs. Farhan C NO. 326365/16 Page 5 during the course of inspection, they found that premises bearing NO. 1225, Ground Floor, Jamun Wali Gali, Kala Mahal, Daryaganj, there was a direct theft of electricity on at the premises in ground floor. The source of theft was from the pole of BSES YPL via ABC conductor. On further investigation by the team members in the premises, they found the accused Farhan (as stated by the person present itself) at the subject premises and there was no electricity meter found installed at the subject premises. For further investigation, they could not check the proper load of the subject premises due to resistance by Farhan. Videography of the inspection was done by Mahesh from M/s Arora Photo Studio. LinemanBablu removed the two core illegal PVC cable of size 2x10 sq. mm of length half meter approx. from the site. One lady guard also accompanied with the inspection team. At the time of assessing load by DET Shivji Shukla, there was resistance created by the person present at site.
BYPL Vs. Farhan C NO. 326365/16 Page 6
08). PW3 Sh. Bablu Prasad testified that on 11.01.2016, they went to 1225, Gali Jamun Wali, Kala Mahal, Daryaganj, Delhi06. There was direct theft of electricity going on from AB conductor of the complainant company. Surveillance team members were with them. They did the videography. They entered into the subject premises in order to assess load. That time, hindrance was created. They could not assess the load properly but somehow assessed by DET. The illegal wire was removed by him upto to the possible extent. Thereafter, they left the premises.
9). Thereafter, statement U/s 313 Cr.P.C of accused had been recorded in which he has denied the allegations levelled against him. He also stated that no inspection was carried out at the subject premises as alleged and he was not indulged in any type of theft of electricity as alleged. The present complaint was false one.
BYPL Vs. Farhan C NO. 326365/16 Page 7 He also stated that the witnesses were the interested witnesses of the complainant company and falsely implicated him in the present case being the officials of the complainant company. He also stated that he was innocent and he had not committed any alleged offence of electricity theft and he had been falsely implicated in the present case.
10. I have heard the arguments and perused the material available on record as well as relevant provisions.
In this present case, as per the case of the complainant company, PW02 Ravi Kumar Tiwari and PW03 Sh. Bablu Prasad are star material complainant witnesses as they were the members of the inspection team.
It is to note here that as per the testimony of PW02 Sh. Ravi Kumar Tiwari, as per direction of General Manager Enforcement1, they inspected at the subject premises and during crossexamination, he stated that the direction from the General ManagerEnforcement 1 was oral for raid.
It will not be out of place to mention here that as per the BYPL Vs. Farhan C NO. 326365/16 Page 8 crossexamination of PW03Bablu Prasad, as per the direction of DGM, the raid was carried out in the present case and also stated that there was no written direction from DGM side.
Here, it is said that as per testimony of PW02, direction for raid was from General Manager Enforcement1 while as per crossexamination of PW03, direction for raid was from DGM. So, contradiction in the statement of PW02 and PW03 creates doubt which certainly goes against the case of the complainant company.
The provision of Regulation 52 (ix) of Delhi Electricity Supply Code and Performance Standards Regulation, 2007, is reproduced as under:
(ix) The report shall be signed by the Authorized Officer and each member of the inspection team and the same must be handed over to the consumer or his/her representative at site immediately under proper receipt. In case of refusal by the consumer or his/her representative to either accept or give a receipt, a copy of inspection report must be pasted at a conspicuous place in/outside the premises and photographed. Simultaneously, the report shall be sent to the consumer under Registered Post.
As per the complaint, inspection report, load reports BYPL Vs. Farhan C NO. 326365/16 Page 9 and seizure memo were prepared at spot.
It is to note here that as per the testimony of PW02 Ravi Kumar Tiwari, during the inspection, they found that there was a direct theft of electricity at the premises in the ground floor and at the time of assessing load by DETShivji Shukla, there was resistance created by the person present at site.
Furthermore, as per the testimony of PW03Sh. Bablu Prasad, there was direct theft of electricity going on from AB conductor of the complainant company. He also stated that at the time of load assessment, hindrance was created.
It is very very relevant to pen down here that neither PW02 nor PW03 testified regarding preparation of any alleged Inspection Report, Load Report and Seizure Memo at spot /subject premises. Further, they did not rely upon any alleged Inspection Report, Load Report and Seizure Memo during their BYPL Vs. Farhan C NO. 326365/16 Page 10 testimony.
It is also worthwhile to mention here that during crossexamination, PW03Sh. Bablu Prasad stated that the load report of this present case was prepared while sitting in the office.
In light of above, view of the Court is that the complainant company failed to prove its own case regarding preparation of any alleged Inspection Report, Load Report and Seizure Memo at the spot and admittedly, as per cross examination of PW03, the alleged load report was prepared while sitting in the office. These facts create doubt which certainly goes against the case of the complainant company It is also to note here that neither PW02 nor PW03 testified regarding offer, refusal and pasting of alleged inspection report and no document has been proved on record BYPL Vs. Farhan C NO. 326365/16 Page 11 that the accused had been served with the alleged inspection report through registered post.
Thus, complainant company failed to prove that alleged inspection report was ever served upon the accused. Therefore, the inspection team has not complied with the abovesaid mandatory regulation which certainly goes against the complainant company.
As per the testimony of PW02Sh. Ravi Kumar, during the course of inspection, they found that there was a direct theft of electricity at the premises in ground floor and the source of theft was from the pole of BSES YPL via ABC conductor and linemanBablu removed the two core illegal PVC cable of size 2x10 sq. mm of length half meter approx. from the site.
As per the testimony of PW03Sh. Bablu Prasad, there was direct theft of electricity going on from AB conductor of the complainant company and illegal wire was removed by him upto the possible extent.
It will not be out of place to mention here that none of BYPL Vs. Farhan C NO. 326365/16 Page 12 abovenamed PWs testified that they can identify the alleged case property if shown to them and no such alleged wire were produced in the Court during the testimony of PW02 and PW03 who as per case of complainant company are star material witnesses of the complainant company.
In light of above, here it is said that complainant company failed to prove that abovesaid illegal wire was removed and also failed to prove that the accused was indulged in direct theft of electricity through two core illegal PVC cable as alleged. These facts also go against the case of the complainant company.
As per the testimony of PW02Sh. Ravi Kumar Tiwari, videography of the inspection was done by Mahesh from M/s Arora Photo Studio and during crossexamination, he stated that there was no document on judicial record to show that Maheshphotographer was hired by the complainant company to accompany with the members of inspection team BYPL Vs. Farhan C NO. 326365/16 Page 13 to raid at the subject premises.
As per the testimony of PW03Sh. Bablu Prasad, they did the videography and during crossexamination, stated that Maheshphotographer accompanied with the inspection team.
It is very very relevant to pen down here that no alleged Maheshvideographer/photographer has been examined by the complainant company. Had alleged videographer/photographer examined, the accused would have got an opportunity to crossexamine him.
Further, It is worthwhile to mention here that none of PWs have relied upon alleged Videography/CD in post summoning evidence.
In light of above, here, view of the Court is that complainant company failed to prove that any videography was BYPL Vs. Farhan C NO. 326365/16 Page 14 conducted on the date of alleged inspection at the subject premises.
In this case, the inspection team has not joined the independent public persons during alleged inspection.
It is relevant to pen down here that neither PW02 nor PW03 testified during their testimonies regarding joining of public person as witness during inspection proceedings. Therefore, nonjoining of the public persons during alleged inspection also goes against the case of the complainant company.
So far as PW01Sh. Jitender Shankar is concerned, he is formal witnesses and he only testified regarding filing of the present complaint case and during crossexamination, he stated that he did not have personal knowledge of the facts of the present case and he was not the members of the raiding team.
BYPL Vs. Farhan C NO. 326365/16 Page 15 In view of abovediscussion, the complainant company has failed to prove the offence alleged against accused namely Farhan beyond reasonable doubt in the present case. Thus, the accused namely Farhan is entitled for acquittal. Accordingly, accused namely Farhan is acquitted for the offence punishable U/s 135 of the Electricity Act, 2003. Bail bond of accused stands canceled and his surety is also discharged. Amount, if any, deposited by the accused as a condition for bail or in pursuance to interim order of the court qua the theft assessment bill raised by the company on the basis of alleged inspection dated 11.01.2016 be released by the complainant company after expiry of the period of appeal. It is to note here that bail bond U/s 437 (A) Cr.P.C. of accused has been furnished and accepted. File be BYPL Vs. Farhan C NO. 326365/16 Page 16 consigned to record room after due compliance. Digitally signed by REKHA REKHA Date:
2019.12.03 16:14:57 Announced in open court (Rekha ) +0530 on day of 3rd December, 2019 ASJ(Special Court) Electricity/Central Tis Hazari Courts, Delhi BYPL Vs. Farhan C NO. 326365/16 Page 17