Delhi District Court
Bypl vs . Jitender & Meera on 8 April, 2013
C.C. No. 304/07
BYPL Vs. Jitender & Meera
IN THE COURT OF SH. ARUN KUMAR ARYA
ADDITIONAL SESSIONS JUDGE, SPECIAL COURT, (ELECTRICITY),
TIS HAZARI COURT, DELHI
Complaint instituted on : 10.07.2007
Judgment reserved on : 01.04.2013
Judgment pronounced on : 08.04.2013
Complaint Case No : 304/07
Unique Case ID No. : 02402R0044102009
BSES Yamuna Power Limited
A Company Duly Incorporated Under
The Companies Act, 1956
Having its registered office at:
Shakti Kiran Building, Karkardooma,
Delhi110032
Acting through its Authorized Officer,
Shri C.B. Sharma
..............Complainant
Versus
1 Jitender (User)
10A, Rajasthan Colony,
Baba Farid Puri, Anand Parbat,
New Delhi
2 Smt. Meera, (User / Proprietor)
10A, Rajasthan Colony,
Baba Farid Puri, Anand Parbat,
New Delhi ................Accused
Page 1 of 12
C.C. No. 304/07
BYPL Vs. Jitender & Meera
J U D G M E N T
1. That the complainant is a company incorporated under the Companies Act, 1956 (to be referred as "company" hereinafter) having its registered office at Shakti Kiran Building, Karkardooma, Delhi 110092 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 area of the accused. The company is the licensee for supply of electricity in major parts of Delhi, including the premises bearing 10A, Rajasthan Colony, Baba Farid Puri, Anand Parbat, New Delhi where the offence has been allegedly committed by the accused persons. The present case was filed through Sh. C.B. Sharma and thereafter Sh. Rajeev Ranjan was substituted as authorized representative by order of this court.
2. A complaint under section 135/138 read with Section 151 of the Electricity Act, 2003 (to be referred as "Act" hereinafter) was filed against the accused by the company with a prayer for determining the civil liability against the accused u/s 154 (v) of this Act.
3. As per this complaint, on 14.09.2006, a joint inspection team comprising of (i) Sh. Raju Saklani (Assistant Manager), (ii) Sh. Mahesh Chand Gautam (DET) and (iii) Sh. Bansi Dhar Dubey Page 2 of 12 C.C. No. 304/07 BYPL Vs. Jitender & Meera (Lineman) inspected the premises bearing 10A, Rajasthan Colony, Baba Farid Puri, Anand Parbat, New Delhi. During the course of inspection the accused persons were found to be indulging in direct theft of electricity for industrial purpose i.e. "manufacturing of spring". The theft was being committed through illegal tapping directly from BYPL low voltage mains from the pole using illegal wires. No meter was found installed at the site. The total connected load 10.809 KW which was illegally used by the accused and same was assessed by the inspection team.
4. During the course of inspection official of the company called Sh. S. K. Gajbhiye, Manager Enforcement, at site for seizing the illegal material from the spot. Subsequently, theft assessment bill in the sum of Rs. 4,25,853/ was raised against the accused by the company. Hence, the present complaint was filed against the accused persons.
5. The accused was summoned U/S 135 of the Electricity Act 2003 by ld. predecessor of this Court by order dated 21.09.2007 after recording the pre - summoning evidence. A notice u/s 251 Cr.PC was also framed against accused no. 2 (Meera) by ld. predecessor of this Court on 19.09.2011 to which accused no. 2 pleaded not guilty Page 3 of 12 C.C. No. 304/07 BYPL Vs. Jitender & Meera and claimed trial. Accused no. 1 (Jitender) was declared proclaimed offender vide order dated 14.01.2011 by the order of Ld. Predecessor of this court.
6. Company in support of its case examined 3 witnesses namely PW 1 Sh. Rajeev Ranjan (Authorized Representative), PW 2 Sh. Raju Saklani (Assistant Manager) and PW 3 Sh. S.K. Gajbhiye (Assistant Vice President, Enforcement).
PW 1 Sh. Rajeev Ranjan deposed that the present complaint Ex. CW 1 / A was filed by Sh. C.B. Sharma. He was authorized vide letter of authority in his favour Ex. PW 1/ A. PW2 Sh. Raju Saklani, deposed that on 14.09.2006, a team comprising of himself, Sh. Mahesh Chand Gautam, DET, Sh. Bansai Dhar Dubey, LM and Sh. S.K. Gajbhiye, Manager Enforcement had conducted a raid at the premises bearing no. 10/A Rajasthan Colony, Baba Farid Puri, Anand Puri, at about 3:50 PM. The raid was conducted on the instruction of Recovery Head, Sh. Bains. At the time of inspection accused was found indulging in direct theft of electricity by tapping BSES Yamuna Power Ltd LV mains. No meter was found installed at site at the time of inspection. Accused Jitender was found at site and he disclosed the name of accused Meera as the owner of the property. The reports Page 4 of 12 C.C. No. 304/07 BYPL Vs. Jitender & Meera i.e. inspection report (Ex.CW2/A) and load report were prepared at site by the member of the raiding team.
The photographs (Ex. CW 2/D) and compact disc (CD) (Ex. CW 2/D1) were prepared by the member of the raiding team showing the alleged irregularities and connected load found at the spot. Entire inspection report was offered to the accused and workers present at site, they refused to accept & sign the same. Seizure memo was also prepared at site (Ex. CW 2/ C).
PW3 Sh. S.K. Gajbhiye, deposed that on 14.09.2006, he received a telephonic call from Sh. Raju Saklani. He reached the premises in question and was shown the mode of theft of electricity. On his instructions, lineman removed the illegal cable. Seizure memo was prepared (Ex. CW 2 / C).
In her statement recorded u/s 313 Cr.P.C., accused has denied the allegation and he pleaded ignorance about the raid conducted in the premises.
7. Ld. Counsel for the accused argued that no raid was conducted at the premises of the accused and the case is purely based on hearsay evidence.
In the cross examination PW2 admitted that they had no Page 5 of 12 C.C. No. 304/07 BYPL Vs. Jitender & Meera written permission with them for conducting the raid. They have not given any information to the police for conducting the raid. He admitted that accused Meera was not shown in any of the photographs. No documents were obtained from the user Jitender (tenant) which could prove that accused Meera was landlord and accused Jitender was her tenant. Name of accused Meera was only mentioned as per the information of accused Jitender. Name of workers were also not mentioned by the team in any of the reports.
Accused Meera was not shown in any of the photographs and company has not made the persons who were shown in the photograph Ex. CW 2/D as an accused. Witness Sh. Mahesh Chand Gautam (DET) who was also the member of the raiding team and also signed on the entire report was not examined by the company.
All the members signed the entire inspection report mentioning the date of inspection however, Sh. S.K. Gajbhiye did not mention the date of inspection below his signature on the seizure memo. No independent person was joined at the time of seizure of case property. The inspection team did not verify the documents of ownership.
The seizure memo did not bear the signature of any independent witnesses. He further urged that the company had not Page 6 of 12 C.C. No. 304/07 BYPL Vs. Jitender & Meera examined the witnesses in this case i.e Sh. Mahesh Chand Gautam, Sh. Bansi Dhar Dubey and other witnesses as cited in the list of witnesses filed by them. Withholding this witnesses who were member of the raiding team in a criminal trial, cause suspicion in the case of the company. It was further submitted that the accused has been falsely implicated by the company and is entitled to be acquitted in this case.
8. Per contra, counsel for complainant has argued that accused committed direct theft of electricity by tapping BSES Yamuna Power Ltd LV mains. As per deposition of PW 2 Sh. Raju Saklani and Sh. S.K. Gajbhiye, 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.
10. The principle of fastening the criminal liability is different than that of civil liability in case of electricity matters. It was not mentioned in the inspection report whether the accused was occupying the premises in the capacity of tenant or owner. No inquiry in this respect was made by the inspection team. The name of accused Meera is not Page 7 of 12 C.C. No. 304/07 BYPL Vs. Jitender & Meera given in the inspection report. In order to connect the accused with the offence, reliable evidence is required to be led by the company which could prove that the accused was connected with the premises in which the theft was being committed. No such evidence has been adduced by the company.
11. As per Regulation 25 (vii) Delhi Electricity Regulatory Commission (Performance Standards Metering and Billing) Regulations, 2002, the report must be signed by each member of the joint team and as per Regulation 52 (ix) of 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", however lineman i.e. Sh. Bansai Dhar Dubey did not sign in any of the reports.
As per clause 52 (vii) Delhi Electricity Supply Code and Performance Standards Regulations 2007, the case against the consumer in designated Special Court shall be filed within 2 days from the date of inspection. This inspection was made on 14.09.2006 however the complaint against the accused was filed on 10.07.2007 without adhering to above stipulation. The delay in filing of complaint in stipulated time, gives ample time to the company to make improvement Page 8 of 12 C.C. No. 304/07 BYPL Vs. Jitender & Meera and embellishment in the complaint and its non - explanation further dilutes this case.
12. 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 within 24 hours of such disconnection as per Section 135 Electricity Act. No such complaint was made in the present case.
13. This inspection was carried out in the year 2006, the complainant 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.
14. As per Regulation 52 (i) to (iv) of Delhi Electricity Supply Code and Performance Standards Regulations 2007 "An Authorized officer duly appointed and in the list of Authorized officers published by licensee can inspect the premises and prepare reports". There is nothing on record to show who was the Authorized Officer competent to make this inspection. The Notification dated 31.03.2004 issued by Lt. Governor of the National Capital Territory of Delhi, Page 9 of 12 C.C. No. 304/07 BYPL Vs. Jitender & Meera authorized only the technical officers of the rank of Manager / Executive Engineer and above, in this respect. As per this notification Sh. Raju Saklani (Assistant Manager), Sh. Mahesh Chand Gautam (DET) and Sh. Bansai Dhar Dubey (Lineman) cannot be said to be the Authorized officer as their ranks at the time of raid was of Assistant Manager, DET and Lineman. The absence of such an Authorized officer creates a material irregularity on the part of company which goes to root of this case.
15. No independent person was joined at the time of seizing of case property. The local police was also not informed prior to conducting the raid. PW 2 admitted in his cross examination that there is no photographs accused Meera in Ex. CW 2/D.
16. The Electricity Act, 2003 is a special Act enacted in order to create special courts competent to take cognizance of the offences committed under this Act. A special Act created always have special measure to checkmate its misuse by the investigating agencies. In exercise of powers conferred by Section 50 of the Electricity Act, 2003, read with Section 57, 86 and 181 of the said Act, Delhi Electricity Regulatory Commission has formulated the Delhi Electricity Supply Code and Performance Standards Regulations, 2007. Section Page 10 of 12 C.C. No. 304/07 BYPL Vs. Jitender & Meera 57 of Electricity Act 2003, relates to consumer protection and Standards of Performance of Licensee and if, a licensee fails to meet the standards specified than without prejudice to any penalty which may be imposed on prosecution be initiated, it shall be liable to pay compensation to the affected person along with penalty to be determined by the Appropriate Commission.
17. These regulations have statutory force and as per its chapter VII, a procedure was laid down for booking the cases of theft of electricity, to protect the consumer. And if these regulations are not complied than it creates a material irregularity in booking the case of theft further casting serious doubt on the truthfulness of the inspection report prepared by its officials.
18. Although a conviction can be safely based on the testimony of a single witness which seems trustworthy and reliable. In the present case, there are material contradictions in the testimonies of all the witnesses as already discussed herein before, so, it shall be highly unsafe to rely on their testimonies.
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 Page 11 of 12 C.C. No. 304/07 BYPL Vs. Jitender & Meera and unimpeachable evidence before an accused can be convicted. The company has failed to travel this distance.
For the foregoing reasons, the complainant company has failed to prove the charges leveled against the accused. Accordingly, accused no. 2 (Meera) is acquitted of the offence U/S 135 & 151 of the Electricity Act, 2003. 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 complainant company after expiry of period of appeal. File be consigned to record room. It be retrieved as & when accused no. 1 (Jitender) is brought or produced before the court u/s 299 Cr.P.C.
(Arun Kumar Arya) ASJ/Spl. Court (Elect) Tis Hazari/Delhi/08.04.2013 Announced in the open court Page 12 of 12