Delhi District Court
Bses Yamuna Power Ltd vs . Zakir & Anr. on 6 September, 2014
CC No: 203/08
Police Station: Nabi Karim
BSES Yamuna Power Ltd Vs. Zakir & Anr.
IN THE COURT OF SHRI ARUN KUMAR ARYA,
ADDITIONAL SESSIONS JUDGE, SPECIAL COURT
(ELECTRICITY), TIS HAZARI COURT, DELHI
CC No. 203/08
Unique case ID No.02402R0037002009
BSES Yamuna Power Ltd.
Having its Registered office at
Shakti Kiran Building,
Karkardooma, Delhi110032
(Through its authorized representative
Sh. C. B. Sharma) ............ Complainant
Through : Sh. Jitender Shankar, Authorized
Representative along with ld. counsel for the
complainant company.
Vs.
1. Zakir (User)
2. Sunil Kumar (Registered Consumer)
Both At:
House No. A558, Amar Puri,
Nabi Karim, Pahar Ganj, Delhi ................ Accused
Through: Sh. Parveen Yadav, Adv. for accused.
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CC No: 203/08
Police Station: Nabi Karim
BSES Yamuna Power Ltd Vs. Zakir & Anr.
Date of Institution ............. 29.02.2008
Judgment reserved on .............. 29.08.2014
Date of Judgment ............. 06.09.2014
Final Order ............. Acquitted
JUDGMENT
1. The complainant company (to be referred as "company" hereinafter) i.e. BSES Yamuna Power Ltd has filed the present complaint case under section 135 read with section 151 of the Electricity Act, 2003 (hereinafter referred to 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 as per provisions of Section 154 (5) of the Act.
2. The case of the company, in brief, is that on 27.11.2007 at about 12.30 PM, as per the direction of Manager (Com) PHG, an inspection team consisting of Sh. Jatan Singh (AM), Sh. Satish Kumar (DET), Sh. Arvind Kumar and Sh. Babloo Prashad (both lineman) raided the premises bearing house no. A558, Amar Puri, Nabi Karim, Pahar Ganj, Delhi (hereinafter referred to as "premises") wherein it was revealed that accused no. 1 was the user and accused no. 2 was the registered consumer of the electricity bearing K No: 1130P519 1885. During inspection, it was found that user / consumer was indulging in direct theft of electricity by tampering the service line and st than tapping with illegal wires at the 1 floor of the premises. Meter Page 2 of 15 CC No: 203/08 Police Station: Nabi Karim BSES Yamuna Power Ltd Vs. Zakir & Anr.
no. 23519392 was found installed at the subject premises.
3. A total connected load of 5.070 KW was being used by the accused through artificial means not authorized by the company. The load was reportedly used by the accused for industrial purpose i.e. for operating sewing machine. The photographs showing the connected load and mode of theft were taken at the spot through digital camera. During the course of inspection, illegal wires used for the abstraction of the electricity and meter were seized by Sh. Jatan Singh.
4. The accused were booked for the offence of direct theft of electricity. An assessment theft bill of Rs.1,63,164/ was raised against the accused for theft of electricity.
5. After recording the pre summoning evidence of company, the accused persons were summoned for the offence U/S 135 of the Electricity Act 2003 by my ld. predecessor vide order dated 11.03.2008. Notice U/S 251 Cr.PC of offence punishable U/S 135, 150 and 151 of Electricity Act, 2003 was framed against the accused persons by my ld. predecessor on 16.03.2010 to which both accused persons pleaded not guilty and claimed trial.
6. Complainant in support of its case examined 3 witnesses namely PW - 1 Sh. Rajeev Ranjan, PW - 2 Sh. Satish Kumar and PW - 3 Sh. Jatan Singh. Accused no. 2 (Sunil Kumar) was acquitted Page 3 of 15 CC No: 203/08 Police Station: Nabi Karim BSES Yamuna Power Ltd Vs. Zakir & Anr.
by this court vide order dated 07.11.2013 as no incriminating evidence was led against him by the company.
PW - 1 Sh. Rajeev Ranjan deposed that the present complaint Ex.CW1/B was filed by Sh. C. B. Sharma. The company executed a power of attorney in his favour Ex. CW1/A. PW - 2 Sh. Satish Kumar, deposed that on 27.12.2007 at about 12:30 PM he along with Sh. Jatan Singh, Sh. Arvind Kumar and Sh. Bablu Prashad alogn with local police of police station Nabi Karim and CISF conducted a mass raid at the premises bearing no. A588, Amar Puri, Nabi Karim, Pahar Ganj, Delhi.
User was found indulging in direct theft of electricity by tampering of service line and then by tapping it with illegal wires at the first floor of the premises. Meter bearing no. 23519392 found installed at site. The connected load to the tune of 5.070 KW was used for industrial purpose.
The inspection report (Ex. CW2/A) and load report (Ex. CW 2/B) were prepared. Photographs were taken by team (Ex. CW 2/D) and CD (Ex. CW2/E). Employees of the accused were present at spot and they disclosed the name of the accused persons. All the reports were offered to the persons who were present at the time of inspection at site, they refused to sign the same and did not allow to paste the same.
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CC No: 203/08 Police Station: Nabi Karim BSES Yamuna Power Ltd Vs. Zakir & Anr.
PW - 3 Sh. Jatan Singh, deposed that on 27.11.2007 Sh. Satish Kumar, Sh. Arvind Kumar and Sh. Bablu Prashad along with local police of police station Nabi Karim, Pahar Ganj and CISF conducted a mass raid at the premises bearing no. A558, Amar Puri, Nabi Karim, Pahar Ganj, Delhi. and made the similar allegations against the accused.
In his statement recorded U/S 313 Cr.P.C, accused has denied the allegations and he submits that he was never indulged in any theft of electricity and falsely implicated in the present case.
7. Ld. Counsel Sh. Parveen Yadav, Adv. for the accused has argued that accused is falsely implicated in this case and there is no incriminating evidence against him. He submitted that no inspection was carried out at the subject premises as alleged, no documents like inspection report, load report, seizure memo etc. were prepared at the spot. The name of employees who were present at premises during the inspection was not mentioned by the team in the inspection report.
PW 2 Sh. Satish Kumar admitted that there is no photograph of the meter which was seized from the premises. He did not remember as to how the electricity was used at ground floor. He did not know the name of the person who was shown in the photographs. No photographs of preparation of the inspection report were filed on record. No hindrance was created by the representative Page 5 of 15 CC No: 203/08 Police Station: Nabi Karim BSES Yamuna Power Ltd Vs. Zakir & Anr.
/ any other person at the site. No pubic persons were made as a witness at the time of inspection. Identity proof of the person who was shown in the photographs was not established.
PW 3 Sh. Jatan Singh, admitted during his cross examination that no photograph of the meter was filed on record. Police officials were not made as a witness in this case. The meter was stopped with the help of changeover switch. Changeover switch was not removed from the site and he could not tell the reason as to why the same was not removed.
Neighbor / public persons were not made as a witness in inspection report as well as at the time of seizing of material evidence. CISF and police personnels were not joined in the inspection. Address of the premises was also not shown in the photographs.
Counsel for the accused argued that entire case of the company was based on the hearsay evidence. 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 indulging in direct theft of electricity by tampering of service line and than tapping with the illegal wires at the first floor of the premise. Accused used the load to the tune of 5.070 KW for industrial purpose. Necessary photographs and visual recording of Page 6 of 15 CC No: 203/08 Police Station: Nabi Karim BSES Yamuna Power Ltd Vs. Zakir & Anr.
the connected load and mode of committing theft of electricity was taken by digital camera.
As per deposition of complainant witnesses, the company has been able to prove 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 name of accused no. 1 (Zakir) is given in the inspection report as the user of the electricity. In order to prove the guilt of accused, the company is required to prove the facts as under:
(a) Whether the subject premises were raided by the officials of the company on 27.11.2007.
(b) Whether the theft of electricity was going on at that time .
(c) Whether accused was the occupying the inspected premises at the time inspection.
The company failed to examine Sh. Arvind Kumar and Sh. Bablu Prasad, who were the member of the raiding team who was cited in the list of witnesses also. No explanation has been assigned for the non examination of these witnesses.
As per complaint, inspection report and deposition of PW Page 7 of 15 CC No: 203/08 Police Station: Nabi Karim BSES Yamuna Power Ltd Vs. Zakir & Anr.
- 3 Sh. Jatan Singh date of inspection is mentioned as 27.11.2007 however, PW 2 Sh. Satish Kumar mentioned the date of inspection as 27.12.2007.
In the complaint, inspection report and as per deposition of PW - 3, inspection was carried out by the team at the premises bearing no. A558, however PW 2 deposed that inspection was carried out at the premises bearing no. A588. The abovesaid facts creates doubt on the timing of inspection PW 2 and PW 3 both admitted during their cross examination that reports were not pasted as representative of the accused did not allow the team to paste the reports at site, however, at the same time they admitted that no hindrance was created by the representative of the accused / any other person at the time of inspection. Inspecting team was also accompanied with local police and CISF, but no complaint was lodged to the police for the investigation of the case.
No independent person was joined at the time of seizure of the case property. Witnesses Sh. Arvind Kumar, Sh. Bablu Prasad and staff of the CISF who were the member of team were not examined by the company. It is not mentioned in the inspection report that whether accused was occupying the premises in the capacity of owner or tenant. One meter bearing no. 23519392 was Page 8 of 15 CC No: 203/08 Police Station: Nabi Karim BSES Yamuna Power Ltd Vs. Zakir & Anr.
found at site but company did not file any document on record to prove its registered consumer. Company has not examined the person who was shown in the photograph. All the above noted facts were duly considered in the judgment of Hon'ble High Court of Delhi in Cr. L. P. 475/2013 titled as BSES Yamuna Power Ltd Vs. Mohd. Sharif dated 26.03.2014 wherein, the accused was held to be rightly acquitted by the trial court.
The inspection report (Ex. CW 2/A) states in the coloum name of the user as Zakir ("as stated") it does not specify as to who told them the name of the accused whether it was accused or somebody else. The employees were not examined by company in the court and no investigation was carried out by police in this respect. No inquiry in this respect was conducted by the company before the filing of the complaint. It is on record that the company did not procure the document pertaining to occupancy or the ownership of the inspected premises. No independent witness was examined to prove the occupancy of premises by accused otherwise. Reliance is placed on the recent judgment of (Hon'ble High Court in Crl. L. P. No. 598/2013 decided on 21.01.2014 titled as BSES Yamuna Power Ltd. Vs. Guddu).
The company was under obligation to prove as to who was the actual possession of the inspected premises at the time of Page 9 of 15 CC No: 203/08 Police Station: Nabi Karim BSES Yamuna Power Ltd Vs. Zakir & Anr.
inspection and same was not done. So, as per the recent judgment of Hon'ble High Court in Crl. A. No. 816/2010 decided on 22.03.2012 titled as BSES Rajdhani Power Ltd Vs. Ruggan, the accused does not fall within the ambit of "WHOEVER" as enumerated U/S 135 of the Electricity Act, 2003.
Site plan prepared by the member of the raiding team was required to be proved specifically however the same was not done. The company was under obligation to prove this site plan to specify the exact location of the inspected premises.
10. The meter was stopped with the help of changeover switch, however company has not removed the changeover switch from the site which is mandatory on their part to remove it to prove their case against the accused, however mentioning of the changeover switch came for the first time in cross examination of PW 3 whereas it is not recorded in complaint or inspection report or examination - in - chief of any witnesses. The non seizure of the changeover switch and the person who took the photographs at the site was not examined in court has duly covered in the judgment of Hon'ble High Court in 2012 (4) JCC 2713 titled as BSES Rajdhani Power Ltd. Vs. Sunheri & Ors., wherein the non - seizure of the entire material and non production of the photographer was held to be fatal to the case of the company.
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CC No: 203/08 Police Station: Nabi Karim BSES Yamuna Power Ltd Vs. Zakir & Anr.
The Compact disc (Ex. CW2/E) 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. As per judgment of Hon'ble High Court of Delhi in Crl. L. P. No. 173/2014 titled as BSES Yamuna Power Ltd Vs. Gyan Chand dated 15.04.2014, wherein it is observed that requisite certificate U/S 65 B is required to be produced in evidence in the court.
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 29.02.2008 after approximately 3 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, delay in lodging the complaint is always fatal to prosecution case (Sahib Singh Vs. State of Haryana AIR 1997 SC 3247).
12. 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 Page 11 of 15 CC No: 203/08 Police Station: Nabi Karim BSES Yamuna Power Ltd Vs. Zakir & Anr.
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.
13. 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. Even the police officials who had joined the raid were not examined as witnesses.
14. 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. Page 12 of 15
CC No: 203/08 Police Station: Nabi Karim BSES Yamuna Power Ltd Vs. Zakir & Anr.
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/B remains unproved on record.
15. 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 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.
The status of accused was not mentioned in the inspection report as to how he was occupying the subject premises. Page 13 of 15
CC No: 203/08 Police Station: Nabi Karim BSES Yamuna Power Ltd Vs. Zakir & Anr.
No evidence is led to prove whether accused was owner / tenant / occupant or unauthorized occupant of the subject premises. 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. Accused no. 2 Sunil Kumar who was alleged to the registered consumer in this case should have been examined as a witness in this case but he was also accused for theft of electricity. This was a pure flaw on the part of the company.
16. In the present case, company has not proved their case by positive evidence as the testimony of PW - 2 and PW - 3 have 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. There is no material evidence on record which connect the theft with the accused.
In view of the foregoing reasons, company has failed to prove its case against the accused no. 1 (Zakir) beyond reasonable doubt, he is 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 or in pursuance to interim order of any court qua the theft bill raised by the company on the basis of Page 14 of 15 CC No: 203/08 Police Station: Nabi Karim BSES Yamuna Power Ltd Vs. Zakir & Anr.
inspection dated 27.11.2007 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/06.09.2014
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