Delhi District Court
(Through Its Authorized ... vs . on 27 May, 2015
IN THE COURT OF SHRI LAL SINGH,
ADDITIONAL SESSIONS JUDGE, SPECIAL COURT
(ELECTRICITY), TIS HAZARI COURT, DELHI
CC No. 815/08
Unique case ID No.02402R0025922009
BSES Yamuna Power Ltd.
Having its Registered office at
Shakti Kiran Building,
Karkardooma, Delhi-110032.
(Through its authorized representative
Sh.C.B.Sharma). ............ Complainant
Vs.
Sajid
2061, 2nd floor, Kucha Chalan,
Near MB School Daryaganj,
New Delhi. ................ Accused
Date of Institution : 11.12.2008
Judgment reserved on : 23.05.2015
Date of Judgment : 27.05.2015
JUDGMENT
1). Brief factual matrix of the case are that, on 17.09.2008 at 01.05 p.m., as per the direction of Sh.G.P.Singh, DGM (Enforcement), an inspection was conducted by the raiding team of complainant company at House No.2061, Second Floor, Kucha Chalan, Near MB School, Darya Ganj, Delhi. The inspection/raiding team of the complainant company consisted of Sh. J.B.Singh (Sr.Manager), Sh.Mukesh (GET), Sh. Dinesh Singh, Electrician. It is CC No.815/08 BSES YPL Vs. Sajid Page 1 of 9 the case of the complainant that when inspection was carried out in the aforesaid premises, accused Sajid was user of the electricity in the said premises in question and at the time of inspection, accused Sajid was found indulging in direct theft of electricity at Second Floor through illegal wires by cut / tapings at incoming cable service line. Accused was user of the inspected premises. There was no meter in the inspected premises of user/accused. The inspection team took the photographs at the site and also seized the illegal wires from the spot. The total connected load as assessed by the inspection team was 10.750KW for domestic purpose. The Load Report was also prepared by the inspecting team at the time of inspection. Seizure Memo of the seized materials was also prepared by Sh.J.B.Singh, Sr.Manager, at the site. The raiding team members also carried out the visual recording qua the irregularities and CD was prepared. As per complainant, accused/user refused to sign the reports prepared by the raiding team and also not allowed to paste the said report on the premises in question. The accused was illegally, unauthorizedly using the electricity for domestic purposes and for the same an assessment theft bill of Rs.1,53,784/- was raised against the accused by the complainant company for theft of electricity.
2). As such, the complainant company filed the present complaint under Section 135 read with Section 151 of Electricity Act, 2003 (hereinafter referred to as the Act) against the accused with the prayer to determine the civil liability of the accused as per provisions of Section 154 (5) of the Act.
3). The complainant company carried out the pre- summoning evidence. After recording of pre-summoning evidence of the complainant company, the accused was summoned to face the trial for the offence punishable under Section 135 of Electricity Act, 2003 by the Ld. Predecessor Court vide order dt. 13.03.2009.
CC No.815/08 BSES YPL Vs. Sajid Page 2 of 94). Thereafter, vide order dt. 21.01.2010 notice under Section 251 Cr.P.C. for the offence punishable under Section 135 and 151 Electricity Act, 2003 was framed against the accused, to which the accused pleaded not guilty and claimed trial.
5). In support of its case, the complainant company examined two witnesses in all namely PW-1 Sh. Rajeev Ranjan and PW-2 Sh. J.B. Singh, Sr. Manager.
6). PW1 Sh. Rajiv Ranjan, Manager Legal stated that vide power of attorney dated 29.08.06 Ex.PW1/A he has been authorized to represent the complainant company. PW1 deposed that the present complaint has been filed by Sh.C.B.Sharma, Legal officer of the complainant who was authorized to file complaint vide POA dated 14.06.2007 vide Ex.CW1/A. PW-1 has also proved complaint Ex.CW1/B and identified the signature of Sh. C.B.Sharma at point A in the complaint. PW1 is also stated in evidence that complainant company on the basis of inspection report and load report, prepared the theft bill due date 04.10.08 for amount of Rs. 1,53,784 vide Ex. CW2/F. Pw1 was not cross examined on behalf of the accused.
7). PW-2 Sh.J.B.Singh, Senior Manager of the complainant company deposed that on 17.09.08 at 1.05 PM on the reference of Sh.G.B.Singh DGM, the raid was conducted in the premises of the accused i.e premises bearing no. 2061, 2 nd Floor, Kucha Chalan, M.B.School, Daryaganj, Delhi. As per PW2 the raiding team consisted of himself, Sh. Mukesh Kumar (GET) and Sh.Dinesh Singh (Electrician). PW2 deposed that in the said raid the accused Sajid was found indulging in direct theft of electricity in the aforesaid premises through illegal wires by tapping of cable of other user. PW2 further stated that there was no meter at site and entire connected load was running through that illegal wire. PW2 also deposed that they prepared the inspection report vide Ex. CW2/A and further load CC No.815/08 BSES YPL Vs. Sajid Page 3 of 9 report was prepared vide Ex.CW2/B. As per PW2 the seizure memo was prepared vide Ex. CW2/C and photographs were also taken vide Ex. CW2/D. PW2 also exhibited the CD vide Ex. CW2/E. In his evidence, PW2 also identified two black electric wires vide Ex.P-1 and Ex.P-2. PW-2 further deposed that at the time of inspection they found total connected load of 10.750KW and same was used for domestic purpose.
8). Thereafter, statement of accused u/s 313 Cr.PC was recorded on 21.02.2014. In his statement u/s 313 Cr.PC accused denied the allegation as come against him in evidence of the complainant witnesses. Accused while examining u/s 313 Cr.PC stated that he was falsely implicated in the present matter and also denied that any raid was conducted at his premises by the officials of the complainant.
9). The accused has not led any defence evidence.
10). I have heard the arguments of Ld. Counsel for the parties.
11). Ld. Counsel for the complainant submitted that the inspection report vide Ex.CW2/A is a very crucial piece of evidence, as in the said report the name and address of the accused is mentioned and accused was served on the same address as mentioned in Ex. CW2/A. He further submitted that this shows that accused is residing at the said address as mentioned in Ex. CW2/A and he was the consumer/user of the said premises in question. Ld. Counsel for complainant further submitted that accused was found indulging in direct theft by cutting/tapping the incoming service line of the complainant. He further argued that there was no meter found in the 2nd floor of the premises as used by the accused. Ld. Counsel for the complainant also submitted that PW2 has proved all the relied CC No.815/08 BSES YPL Vs. Sajid Page 4 of 9 upon documents of the complainant and further PW2 has also prove the case property that is wire in question which was seized from the spot. Ld. Counsel for complainant submits that the complainant has established its case against the accused.
12). On the other hand, Ld. Counsel for the accused submitted that out of the three members of raiding team, the complainant has examined only one witness and failed to examine other two witnesses. He further submitted that there was no resistance at the spot and no photograph of the accused has been placed on record. Ld. Counsel for the accused further submitted that photographer/lineman was not examined by the complainant. He further submitted that the complainant has failed to file the certificate u/s 65 B of Indian Evidence Act and hence, the CD and the alleged photographs placed on record has no evidentially value. He further argued that no photographs of the seizure has been placed on record by the complainant. Moreover, no public witness has been made as a witness. Counsel for the accused also argued that no details were filed by the complainant qua the meter from service line of which the alleged theft of electricity was alleged to be committed by the accused. He submitted that the complainant company has failed to prove its case against the accused and accused is entitled to be acquitted in the present case.
13). I have considered the submissions of Ld. Counsel for the complainant as well as Ld. Counsel for the accused and also perused the file and gone through the evidence on record.
14). In the instant matter complainant has examined only two witnesses. PW-1 Sh.Rajeev Ranjan Manager Legal of the complainant company is a formal witness who proved the complaint Ex.CW1/B as filed by Sh.C.B.Sharma, AR of the CC No.815/08 BSES YPL Vs. Sajid Page 5 of 9 complainant. As such PW-2 Sh.J.B.Singh is the only crucial witness examined by the complainant, as he being the head of the raiding team member. Hence the testimony of PW-2 requires close scrutiny. PW-2 in his examination in chief deposed that on 17.09.2008 at 01.05 p.m., he alongwith other raiding team members namely Mukesh Kumar (GET) and Sh. Dinesh Kumar, (Electrician) conducting the raid in the premises of accused and found that the accused Sajid was indulging in direct theft of electricity in the said premises through illegal wires from tapping cable of other users. However, the PW 2 not stated anything in his entire evidence as to who was the other user from whose service line the tapings was alleged to be done by the accused. Moreover, the particulars of the user / owner of the said other user has not been disclosed and even that other user was not made as a witness by the complainant company to establish its case. PW-2 has not given any plausible explanation as to why he has not inquired from the said other user from whose service line the said alleged tapping was alleged to be done by the accused. It was incumbent upon the PW 2 who was the head of the raiding team member to inquired from the said other user of the premises and also to have made the said person as witness to the seizure of the alleged materials from the spot, but PW 2 as well as other members of the raiding team had failed to do the same. Moreover, the identity of said other user was not disclosed and he was also not cited as a witness. All these lacuna in the complainant case is also fatal to the case of the complainant.
15). Though in his examination in chief the PW-2 deposed that the accused did not sign inspection report and also did not allow to paste the entire report at the premises, however, in the cross examination PW-2 deposed that there was no resistance from any person at the time of inspection. This contradiction itself shows CC No.815/08 BSES YPL Vs. Sajid Page 6 of 9 that the testimony of Pw-2 is not credible. As PW-2 himself stated in his cross examination that there was no resistance from any person present at the spot, than as to why the inspection report was not pasted at the premises in question and also as to why the signature of the accused was not obtained on the inspection reports, qua that the PW-2 failed to give any satisfactory explanation. Otherwise, also in cross examination PW-2 admitted that no photographs of the accused was taken. PW-2 in cross examination categorically stated that they did not try to obtain the photograph of accused Sajid. There was also no plausible explanation from PW-2 as to why the photograph of the accused was not taken. Moreover, Compact disc (CD) Ex.CW2/E and print out of the alleged photograph of the premises in question vide Ex.CW2/D were not proved by the complainant witnesses in accordance with law. The compact disc Ex.CW2/E and print out of photographs Ex.CW2/D placed on record are of no help to the complainant as same were not proved in accordance with Section 65 B of Indian Evidence Act. The complainant has not filed the certificate u/s 65 B of the Indian Evidence Act, hence the CD Ex.CW2/E and print out of the photograph Ex.CW2/D are of no help to the complainant case, as the complainant failed to prove the same in accordance to law.
16). Further, as per regulation 52 (vii) of the Electricity Supply Code and Performance Standards Regulations, 2007, in case of direct theft of electricity the licensee shall disconnect the supply and seize all the material evidence including wires / cables, meter, service line etc., from the premises and within two days from the date of inspection, file the case against the consumer in the designated special court as per provision section 135 of the Act. However in the instant matter, the complaint has been filed after about 3 months. There is no satisfactory explanation on the part of the CC No.815/08 BSES YPL Vs. Sajid Page 7 of 9 complainant qua the aforesaid delay in filing the complaint u/s 135 of the Electricity Act against the accused. The unexplained delay in lodging the complaint is also fatal to the complainant as the complainant has not complied with the provision of Section 52 (vii) of the Electricity Supply Code and Performance Standards Regulations, 2007.
17). In the print out of the photograph Ex.CW2/D, the alleged illegal wire has neither been shown nor the seizure of the same has been reflected in the said photographs. It was also incumbent upon the raiding team members to take the photographs of the alleged illegal wires through which the accused is alleged to have tapped the electricity and alleged to indulged in direct theft of electricity. It is also not believable that the raiding team member would take photographs of the meter of the other registered user of the electricity in the said premises as well as photographs of the room of the accused showing the electric equipments like fan, tube light, fridge, TV, washing machine etc. as shown in the photograph Ex.CW2/D and at the same time failed to take the photographs of alleged illegal wires and the photographs of the seizure of the alleged illegal materials from the spot. This also weakens the case of the complainant as the raiding team members failed to take photographs of the illegal wire and seizure proceedings of the alleged illegal material.
18). Moreover, the complainant has failed to examine other two raiding team members namely Mukesh Kumar GET and Sh.Dinesh Singh (electrician). It was incumbent upon the complainant to have examined both the said raiding team members so as to establish its case against the accused, more particularly in the circumstances when there is material contradiction in the testimony of PW-2. Further one of the raiding team member namely CC No.815/08 BSES YPL Vs. Sajid Page 8 of 9 Sh. Dinesh Singh (Electrician) has not signed the inspection report prepared by the inspecting / raiding team. As per regulation 52 (ix) of the Electricity Supply Code and Performance Standards Regulations, 2007, the report must be signed by each member of the raiding / inspecting team. Otherwise also, neither in the complaint nor PW-2 in his evidence disclosed the name of the raiding team member or any person who had taken the photographs. All these lacuna certainly goes to the root of the complainant case.
19). In view of the foregoing reasons as discussed above, the complainant company has failed to prove the offence against the accused beyond reasonable doubt in the present case. As such the accused is entitled for acquittal. The accused is accordingly acquitted for the offence punishable u/s 135/151 of the Electricity Act, 2003. Bail bond of the accused stands canceled and surety 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 inspection dated 17.09.2008 be released by the company after expiry of period of appeal.
File be consigned to record room.
Announced in open court ( Lal Singh )
on 27th day of May, 2015 ASJ/Special Court (Elect.)
Tis Hazari/Delhi/27.05.2015
CC No.815/08
BSES YPL Vs. Sajid Page 9 of 9
CC NO.815/08
BSES YPL Vs. Sajid
27.05.2015
Present:- Sh. Jitender Shankar, Authorized Representative for the
complainant company.
Sh. Parveen Yadav, Ld. Counsel for accused along with accused.
Vide my separate judgment of even date, accused is acquitted of the charge/offence punishable U/S 135 and 151 of 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 or in pursuance to interim order of the court qua the theft assessment bill raised by the company on the basis of inspection dated 17.09.2008 be released by the company to the accused after expiry of period of appeal.
However, in terms of Section 437 (A) Cr.PC., accused is directed to furnish a bail bond for the amount of Rs.35,000/- with one surety in the like amount, to appear before the appellate court, as and when such notice is issued in respect of any appeal, which may be filed against this judgment.
Bail bond under section 437 A Cr.PC furnished and same stands accepted.
File be consigned to record room.
(Lal Singh) ASJ/Special Court (Elect.) Tis Hazari/Delhi/27.05.2015 CC No.815/08 BSES YPL Vs. Sajid Page 10 of 9