Delhi District Court
Bses Yamuna Power Ltd vs . Prem Chand Etc. on 26 February, 2014
CC No: 428/08
Police Station: Anand Parbat
U/S 135 of Electricity Act
BSES Yamuna Power Ltd Vs. Prem Chand Etc.
IN THE COURT OF SHRI ARUN KUMAR ARYA,
ADDITIONAL SESSIONS JUDGE, SPECIAL COURT
(ELECTRICITY), TIS HAZARI COURT, DELHI
CC No. 428/08
Unique case ID No.02402R0845252008
BSES Yamuna Power Ltd.
Having its Registered office at
Shakti Kiran Building,
Karkardooma, Delhi110032
(Through its authorized representative
Sh. C. B Sharma) ............ Complainant
Vs.
1: Sh. Prem Shand
T/o Jagdish
R/o J25, FF, Gali No. 11 & 12
Chetan Basti, Anand Parbat, Delhi
2: Jagdish
R/o J25, FF, Gali No. 11 & 12
Chetan Basti, Anand Parbat, Delhi ................ Accused
Date of Institution .............. 03.07.2008
Judgment reserved on .............. 21.02.2014
Date of Judgment .............. 26.02.2014
Final Order .............. Acquittal
JUDGMENT
1. The complainant is a company incorporated under the Page 1 of 15 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 26.02.2014 CC No: 428/08 Police Station: Anand Parbat U/S 135 of Electricity Act BSES Yamuna Power Ltd Vs. Prem Chand Etc. 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 J25, FF, Gali No. 11 & 12, Chetan Basti, Anand Parbat, 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 28.11.2007 at 07:30 PM, a team comprising of Sh. Likhi Ram (AM), Sh. D. K. Arya (AM), Sh. Suresh Kumar (Engrr.) and Sh. Shambhoo Ram (Lineman) had conducted inspection / raid J25, FF, Gali No. 11 & 12, Chetan Basti, Anand Parbat, Delhi. At that time, inspecting team found that accused Prem Chand was found indulging in direct theft of electricity through illegal wires by tapping the other user's service line and the entire connected load of 3.180 KW was running directly by tapping the electricity from the other user's service line. The illegal tapping wires were not removed due to hindrance. The connected load was used for Page 2 of 15 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 26.02.2014 CC No: 428/08 Police Station: Anand Parbat U/S 135 of Electricity Act BSES Yamuna Power Ltd Vs. Prem Chand Etc. Industrial purpose.
Videography and photography of the connected load was conducted by a member of the raiding party at the time of raid. The illegal tapping wires could not be removed due to hindrance. The accused neither accepted nor allowed the team member to paste the inspection report at the premises. Accused also did not co operate the team. The accused was booked for the offence of direct theft of electricity.
3. Subsequently, theft assessment bill in the sum of Rs.1,02,595/ was raised against the accused no. 1 Prem Chand. On the failure of the accused to deposit the same, present complaint was filed against both accused no. 1 and 2. Accused no. 1 (Prem Chand) was declared proclaimed offender vide order dated 23.12.2011 by my ld. predecessor.
4. The accused was summoned U/S 135 of the Electricity Act 2003 by my ld. predecessor vide order dated 11.08.2008 after recording the pre - summoning evidence. Notice under section 251 Cr.PC was framed against accused no. 2 (Jagdish) by my ld. predecessor on 16.04.2012 U/S 135 r/w. Section 151 Electricity Act (to be referred as "Act" hereinafter) to which accused no. 2 pleaded Page 3 of 15 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 26.02.2014 CC No: 428/08 Police Station: Anand Parbat U/S 135 of Electricity Act BSES Yamuna Power Ltd Vs. Prem Chand Etc. not guilty and claimed trial.
5. Complainant in support of its case examined 3 witnesses namely PW 1 Sh. Likhi Ram, PW 2 Sh. D. K. Arya and PW 3 Sh. Rajeev Ranjan.
PW - 1 Sh. Likhi Ram, deposed that on 28.11.2007 as per directions of O & M (Enforcement) he along with Sh. D. K. Arya (Assistant Manager), Sh. Suresh Kumar (Engineer) and Sh. Shambhoo Ram (Line man) had inspected the premises no. J25, Gali No.11,12 Chetan Basti, Anand Parbat, Delhi.
The team met with accused Prem Chand at the premises in question and inquired about the ownership of the premises. He disclosed that Jagdish was the owner of said premises and he was the tenant.
One meter was installed at the ground floor for the supply to the ground floor. At the 1st floor of the premises supply was running directly through illegal wire tapping from BSES LV Mains installed at the back side of the premises. The electricity was used by the accused Prem Chand for industrial purpose. He was running plastic hand moulding machine and the connected load was found to be 3.180KW.
Page 4 of 15 (Arun Kumar Arya)
ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 26.02.2014 CC No: 428/08 Police Station: Anand Parbat U/S 135 of Electricity Act BSES Yamuna Power Ltd Vs. Prem Chand Etc. The inspection report (Ex. CW2/A), load report (Ex. CW 2/B) bore his signatures at point A. Seizure memo was also prepared without any evidence material (Ex. CW 2/C) bore his signature at point A. Photographs (Ex. CW 2/D) and CD containing the photographs were also taken.
The consumer was asked to put his signature on all the documents which he refused to do the same.
PW - 2 Sh. D. K. Arya (Senior Manager) deposed that on 28.11.2007 he along with Sh. Likhi Ram (Senior Manager), Sh. Suresh Kumar (Engineer) and Sh. Shambhoo Ram (Line man) had inspected the premises no. J25, Gali No.11,12 Chetan Basti, Anand Parbat, Delhi and deposed on lines of PW 1 Sh. Likhi Ram.
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. PW 3/A.
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 has no knowledge about the theft.
7. Sh. Parveen Yadav, Ld. Counsel for the accused has argued that accused is falsely implicated in this case and company Page 5 of 15 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 26.02.2014 CC No: 428/08 Police Station: Anand Parbat U/S 135 of Electricity Act BSES Yamuna Power Ltd Vs. Prem Chand Etc. failed to bring any incriminating material against him.
PW 1 Sh. Likhi Ram admitted that he had not applied for any police assistance in the concerned Police Station. Photograph of the ground floor, meter and public present at site were not taken. The alleged illegal material was not seized by team as the ladies belonged to the family of the Prem Chand present at the spot created hindrance. He did not know the name of other user from whose service line the alleged tapping was done by the accused.
PW 2 Sh. D. K. Arya could not point the point of direct theft in the photographs placed on record.
Witness Sh. Shamboo Ram (Lineman) was also the members of the raiding team but he did not sign the reports. Company has not examined Sh. Suresh Kumar and Sh. Shamboo Ram who were the member of the raiding team. Non - examination of these witnesses who were members of the raiding team in a criminal trial, cause suspicion in the case of the company.
PW 1 and PW 2 stated in his examination in chief that theft was committed through illegal wire tapping from BSES LV mains and on the other hand as per complaint, theft was committed through illegal wires tapping from the other user's service line which creates Page 6 of 15 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 26.02.2014 CC No: 428/08 Police Station: Anand Parbat U/S 135 of Electricity Act BSES Yamuna Power Ltd Vs. Prem Chand Etc. serious doubt on the case of 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. No material or case property was seized by the inspection team to prove the factum of alleged theft. He further argued that name of accused no. 2 Jagdish was not mentioned in the complaint and witnesses did not disclose his name for theft of electricity.
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 found indulging in direct theft of electricity through illegal wires tapping from the other user's service line and the entire connected load of 3.180 KW was running directly by tapping the electricity from the other user's service line. The illegal tapping wires were not removed due to hindrance. The connected load was used for Industrial purpose.
The accused was booked for offence of direct theft of electricity. As per depositions of the company's witnesses, the Page 7 of 15 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 26.02.2014 CC No: 428/08 Police Station: Anand Parbat U/S 135 of Electricity Act BSES Yamuna Power Ltd Vs. Prem Chand Etc. 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.
The company failed to examine Sh. Suresh Kumar and Sh. Shamboo Ram 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.
10. The name of accused no. 2 is given in the inspection report as owner of the premises. 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. Name of accused no. 2 was neither mentioned in the complaint nor disclosed by the members of the raiding team. His name was added in the complaint with the blue pen. These above said facts clearly shows that company itself not sure about the allegations against the accused no. 2. In the complaint allegations against theft are made against accused Prem Chand who was proclaimed offender by my ld. predecessor on 23.12.2011. Page 8 of 15 (Arun Kumar Arya)
ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 26.02.2014 CC No: 428/08 Police Station: Anand Parbat U/S 135 of Electricity Act BSES Yamuna Power Ltd Vs. Prem Chand Etc. As per deposition of PW 1 and PW 2 accused no. 1 was present at site and reports were offered to him.
As per depositions of these witnesses theft was committed through illegal wire tapping from BSES LV mains and on the other hand as per complaint, theft was committed through illegal wires tapping from the other user's service line which creates contradictions and weakens the case of the company.
Inspection report is silent as it shows theft was committed through other user's service line and as per complaint theft was committed through LV mains. The company was under obligation to prove this site plan which they failed to do so.
As per company's allegations against the accused that theft was going through the service line of other user's however company has not examined that other user to prove their case.
The company did not procure the document 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 Page 9 of 15 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 26.02.2014 CC No: 428/08 Police Station: Anand Parbat U/S 135 of Electricity Act BSES Yamuna Power Ltd Vs. Prem Chand Etc. 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.
Admittedly, the inspecting team has not seized any material from the site which was used for the theft of electricity which was mandatory on the part of inspecting team. As per complaint and deposition of company's witnesses photographs were taken at site but the person present at site did not allow the members of raiding team to seize the material. It does not appeal to common sense and logic when they were allowed to take photographs then how the person could resist the seizure of the illegal material. The members of the inspecting team were within their rights to call the police for help to seize the material, which they failed to do. The non seizure of material through which direct theft was being committing and the person who took the photographs at the site 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 - seizure of the illegal material and non production of the photographer was held to be fatal to the case of the company. The Compact disc Page 10 of 15 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 26.02.2014 CC No: 428/08 Police Station: Anand Parbat U/S 135 of Electricity Act BSES Yamuna Power Ltd Vs. Prem Chand Etc. (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 03.07.2008 after 8 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 (Sahib Singh Vs. State of Haryana AIR 1997 SC 3247.
12. 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.
13. There is nothing on record to show as to who was the Page 11 of 15 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 26.02.2014 CC No: 428/08 Police Station: Anand Parbat U/S 135 of Electricity Act BSES Yamuna Power Ltd Vs. Prem Chand Etc. 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 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.
14. 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. Page 12 of 15 (Arun Kumar Arya)
ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 26.02.2014 CC No: 428/08 Police Station: Anand Parbat U/S 135 of Electricity Act BSES Yamuna Power Ltd Vs. Prem Chand Etc.
15. 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.
16. 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 Page 13 of 15 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 26.02.2014 CC No: 428/08 Police Station: Anand Parbat U/S 135 of Electricity Act BSES Yamuna Power Ltd Vs. Prem Chand Etc. 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, there are material contradictions between the deposition of company's witnesses and with the complaint. It is relevant to note that 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.
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 Page 14 of 15 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 26.02.2014 CC No: 428/08 Police Station: Anand Parbat U/S 135 of Electricity Act BSES Yamuna Power Ltd Vs. Prem Chand Etc. and unimpeachable evidence before an accused can be convicted. The company has failed to travel this distance.
19. For the foregoing reasons, the complainant company has failed to prove the charges leveled against the accused. Accordingly, accused no. 2 (Jagdish) is acquitted in the present case. 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 28.11.2007 be released by the company after expiry of period of appeal. It be retrieved as & when accused no. 1 (Prem Chand) is brought or produced before the court U/S 299 Cr.P.C.
File be consigned to record room.
Announced in open court (Arun Kumar Ayra) ASJ/Special Court (Elect.) Tis Hazari/Delhi/26.02.2014 Page 15 of 15 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 26.02.2014