Delhi District Court
Bses Yamuna Power Ltd vs . Jeevan Arora on 18 December, 2013
CC No: 782/08
Police Station: Pahar Ganj
U/S 135 of Electricity Act
BSES Yamuna Power Ltd Vs. Jeevan Arora
IN THE COURT OF SHRI ARUN KUMAR ARYA,
ADDITIONAL SESSIONS JUDGE, SPECIAL COURT
(ELECTRICITY), TIS HAZARI COURT, DELHI
CC No. 782/08
Unique case ID No.02402R0073862009
BSES Yamuna Power Ltd.
Having its Registered office at
Shakti Kiran Building,
Karkardooma, Delhi110032
(Through its authorized representative
Sh. C. B Sharma) ............ Complainant
Vs.
Jeevan Arora
10196/34, G/F
Near Jandewalan Mandir
New Delhi ................ Accused
Date of Institution .............. 25.11.2008
Judgment reserved on .............. 12.12.2013
Date of Judgment .............. 18.12.2013
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 13 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 18.12.2013 CC No: 782/08 Police Station: Pahar Ganj U/S 135 of Electricity Act BSES Yamuna Power Ltd Vs. Jeevan Arora 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 10196/34, G/F, Near Jandewalan Mandir, New 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 30.08.2008 at 12:55 PM, a team comprising of Sh. M. M. S. Pachauri (Senior Manager), Sh. Maan Singh Verma (GET), Sh. Anand Verma and Sh. Umesh Kumar (both lineman) and Sh. R. K. Upadhya (AM) had conducted inspection / raid as per the direction of DGM at premises bearing House No. 10196/34, G/F, Near Jhandewalan Mandir, New Delhi. At that time, inspecting team found that accused was found indulging in direct theft of electricity through fake meter tapping the BSES service line from LV mains through illegal wire. The fake meter and tapping wire of 2X10 mm Sq. PVC cable were removed and seized as material evidence at the spot. The reports and documents were not signed by the user at Page 2 of 13 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 18.12.2013 CC No: 782/08 Police Station: Pahar Ganj U/S 135 of Electricity Act BSES Yamuna Power Ltd Vs. Jeevan Arora the spot. Inspection team took the photography and ideographs at site. The total connected load which was illegally used by the accused was 8.503 KW / NX & DX. The accused was booked for the offence of direct theft of electricity.
3. Subsequently, theft assessment bill in the sum of Rs.2,10,323/ 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 punishable U/S 135 and 151 of Electricity Act, 2003 was framed against the accused by my ld. predecessor on 28.08.2009 to which accused pleaded not guilty and claimed trial.
5. Complainant in support of its case examined 2 witnesses namely PW 2 Sh. M. M. S. Pachori (Senior Manager) and Sh. R. K. Upadhyay (Senior Manager) before my ld. predecessor.
PW - 2 Sh. M. M. S. Pachori, deposed that on 30.08.2008 at 12:55 PM as per directions of DGM Enforcement I, he along with Sh. Maan Singh, Sh. Umesh Kumar and Sh. Rajesh Kumar Page 3 of 13 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 18.12.2013 CC No: 782/08 Police Station: Pahar Ganj U/S 135 of Electricity Act BSES Yamuna Power Ltd Vs. Jeevan Arora Upadhyay and one line had inspected 10196/34, near Mata Vaishno Devi Mandir, Jhandewalan, New Delhi. One fake meter was installed at the premises in question and consumer was using the electricity through that meter.
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 containing the photographs (Ex. CW 2/D1) were also taken.
The consumer was asked to show the bill and upon his inability, the case of direct theft was booked against him. The photographs were taken and entire reports were offered to the representative of the accused who refused to sign the same.
PW - 3 Sh. R. K. Upadhyay, deposed that he along with other officials made the inspection on 18.08.2008 at the premises bearing no. 10196/34, Near Jhandewala Mandir, New Delhi. During the course of inspection two meters were found existing at the ground floor of the premises out of which one meter was fake. Electricity supply was being used through fake meter for commercial as well as for domestic purpose. Photographs were taken, illegal material for the purpose of theft was removed and seized. The seizure memo Ex. Page 4 of 13 (Arun Kumar Arya)
ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 18.12.2013 CC No: 782/08 Police Station: Pahar Ganj U/S 135 of Electricity Act BSES Yamuna Power Ltd Vs. Jeevan Arora CW 2/C was prepared. He identified the case property in the court.
6. In his statement recorded U/S 313 Cr.PC, accused has denied the allegation against him. He told that he was falsely implicated in the present case. No raid was conducted at his premises.
7. Ld. Counsel for the accused has argued that accused is falsely implicated in this case and there is no incriminating evidence/ material against him.
PW 2 admitted during his cross examination that some public persons were gathered at the spot but their names and address were not asked by him. One lady was present there but she did not sign on the reports. Company failed to prove the relation of this lady with the accused.
PW 3 during cross examination admitted that he did not meet the accused at site when raid was conducted.
Witnesses Sh. Anand Verma and Sh. Umesh Kumar were also the members of the raiding team but they did not sign the reports except the seizure memo. Company has not examined Sh. Man Singh Verma, Sh. Anand Verma and Sh. Umesh Kumar who were the member of the raiding team. Non - examination of these Page 5 of 13 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 18.12.2013 CC No: 782/08 Police Station: Pahar Ganj U/S 135 of Electricity Act BSES Yamuna Power Ltd Vs. Jeevan Arora witnesses who were members of the raiding team in a criminal trial, cause suspicion in the case of the company.
PW 2 stated in his examination in chief the name of Sh. Maan Singh, Sh. Umesh Kumar and Sh. Rajesh Kumar Upadhyay and one lineman but PW 3 did not mention the name of Sh. Maan Singh in his examination - in - chief which creates contradictions.
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, accused was found indulging in direct theft of electricity through fake meter. The total connected load of 8.503 KW was being used by the accused for domestic as well as commercial purpose.
As per deposition of PW 2 and PW 3 who were 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.
Page 6 of 13 (Arun Kumar Arya)
ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 18.12.2013 CC No: 782/08 Police Station: Pahar Ganj U/S 135 of Electricity Act BSES Yamuna Power Ltd Vs. Jeevan Arora The company failed to examine Sh. Maan Singh Verma, Sh. Anand Verma and Sh. Umesh Kumar who were member of the raiding team and cited in the list of witnesses. No explanation has been assigned for the non examination of these witnesses. So adverse inference has to be drawn against the company.
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 not examined to prove the actual occupant of the premises. 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.
As per deposition of PW 2 consumer was present at site and reports were offered to the representative of the consumer. If consumer was present at site then why he was not captured in any of the photographs. They also did not mention the name of the Page 7 of 13 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 18.12.2013 CC No: 782/08 Police Station: Pahar Ganj U/S 135 of Electricity Act BSES Yamuna Power Ltd Vs. Jeevan Arora representative of the accused in their entire reports as well as in the complaint. They also did not mention the relation between the consumer and the representative. PW 2 admitted that two meters were installed in the premises.
As per company's case, electricity was being used by the fake meter but company fails to prove any record that the meter was fake as the same was not got tested in any laboratory, moreover, no witness from the concerned metering department was produced to prove that this meter was never issued by the company and same did not pertain to the company or the erstwhile Delhi Vidhut Board.
Inspection report is silent on the aspect that who prepared the site plan and how site plan was showing the mode of theft. It is a case of company that theft was being committed through the fake meter however no such meter is showing in the site plan. The company was under obligation to prove this site plan which they failed to do so.
11. As per witnesses photographs were taken at site by the members of the raiding team which were five in number. However, it is not specified as to who had taken those photographs. No witness has deposed on this aspect. As per the recent judgment of Hon'ble Page 8 of 13 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 18.12.2013 CC No: 782/08 Police Station: Pahar Ganj U/S 135 of Electricity Act BSES Yamuna Power Ltd Vs. Jeevan Arora 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.
12. 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 25.11.2008 after 85 days 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 in always fatal (Sahib Singh Vs. State of Haryana AIR 1997 SC 3247.
13. 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 Page 9 of 13 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 18.12.2013 CC No: 782/08 Police Station: Pahar Ganj U/S 135 of Electricity Act BSES Yamuna Power Ltd Vs. Jeevan Arora inspecting team". The non signing of the inspection report by all the member of raiding team casts doubt in the inspection report.
14. 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.
15. 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.
Page 10 of 13 (Arun Kumar Arya)
ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 18.12.2013 CC No: 782/08 Police Station: Pahar Ganj U/S 135 of Electricity Act BSES Yamuna Power Ltd Vs. Jeevan Arora 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.
16. 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 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.
17. A special Act created always have special measures to avoid its misuse by the investigating agencies, so bearing in mind this Page 11 of 13 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 18.12.2013 CC No: 782/08 Police Station: Pahar Ganj U/S 135 of Electricity Act BSES Yamuna Power Ltd Vs. Jeevan Arora 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.
18. 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 and PW 3 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.
19. 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.
20. In view of the foregoing reasons, company has failed to prove its case against the accused beyond reasonable doubt, he is Page 12 of 13 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 18.12.2013 CC No: 782/08 Police Station: Pahar Ganj U/S 135 of Electricity Act BSES Yamuna Power Ltd Vs. Jeevan Arora 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/18.12.2013 Page 13 of 13 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 18.12.2013