Delhi District Court
Bses Yamuna Power Ltd vs . Vasi on 7 July, 2014
CC No: 126/08
Police Station: Darya Ganj
BSES Yamuna Power Ltd Vs. Vasi
IN THE COURT OF SHRI ARUN KUMAR ARYA,
ADDITIONAL SESSIONS JUDGE, SPECIAL COURT
(ELECTRICITY), TIS HAZARI COURT, DELHI
CC No. 126/08
Unique case ID No.02402R0854582008
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 Sh. Nilesh Kumar, Adv. for
the complainant company.
Vs.
Vasi, S/o Sh. Islamuddin
R/o House No: 632, III RD Floor
Rang Mahal (Opp. Ganj Mir Khan)
Dariya Ganj, Delhi ................ Accused
Through: Sh. Kshitiz Mahipal, Adv. for accused.
Date of Institution ............. 30.01.2008
Judgment reserved on .............. 02.07.2014
Date of Judgment .............. 07.07.2014
Final Order .............. Acquitted
Page 1 of 15 (Arun Kumar Arya)
ASJ / Special Court (Electricity)
Tis Hazari Courts, Delhi / 07.07.2014
CC No: 126/08
Police Station: Darya Ganj
BSES Yamuna Power Ltd Vs. Vasi
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 with a further prayer to determine 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 27.06.2007 at about 11.15 AM, as per the instruction of Manager Enforcement, an inspection team of company comprising of Sh. R. K. Aggarwal (AM), Sh. Chobe Singh (Elect), Sh. Raj Karan and Sh. Zainul Hassan (both lineman) raided the premises bearing house no. 632, III RD Floor, Rang Mahal, Opp. Ganj Mir Khan, Dariya Ganj, Delhi (hereinafter referred to as "subject premises") and it was revealed on inspection that user was indulging in direct theft of electricity from the service line of other consumer by using illegal wire. No meter was found at site.
3. It is further mentioned in the complaint that there was a total connected load of 6.116 KW, which was being used by the accused through artificial means not authorized by the company. The Page 2 of 15 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 07.07.2014 CC No: 126/08 Police Station: Darya Ganj BSES Yamuna Power Ltd Vs. Vasi load was reportedly used by the accused for domestic purpose. That the necessary photographs of the connected load and mode of theft were taken at the spot by the joint inspection team. During the course of inspection, raiding team removed and seized the material evidence in the presence of Manager Enforcement who was called at the subject premises.
4. The accused was booked for the offence of direct theft of electricity. An assessment theft bill of Rs.1,21,131/ was raised against the accused for theft of electricity.
5. After recording the pre summoning evidence of company, the accused was summoned for the offence U/S 135 of the Electricity Act 2003 by my ld. predecessor vide order dated 26.02.2008. 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 21.11.2009 to which accused 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. D. P. Singh and PW - 3 Sh. R. K. Aggarwal.
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. Page 3 of 15 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 07.07.2014 CC No: 126/08 Police Station: Darya Ganj BSES Yamuna Power Ltd Vs. Vasi PW - 2 Sh. D. P. Singh, deposed that on 27.06.2007, he received a telephonic call from Sh. R. K. Aggarwal. He reached the premises in question and seized the case property, vide a seizure memo (Ex. CW 2/C) bore his signatures at point Z. PW - 3 Sh. R. K. Aggarwal, deposed that on 27.06.2007 at about 11:15 AM he along with Sh. Chob Singh (Electrician), Sh. Raj Karan and Sh. Zainul Hasan (both lineman) along with local police rd and CISF inspected the premises 632, 3 Floor, Rang Mahal, Opp. Ganj Mir Khan, Dariya Ganj, Delhi.
User was found indulging in direct theft of electricity from the service line of other consumer. The connected load to the tune of 6.116 KW was used for domestic purpose.
The inspection report (Ex. CW2/A) and load report (Ex. CW 2/B) bore his signatures at point A. Print of photographs taken at site are placed on record and are exhibited as (Ex. CW 2/D) and (Ex. CW2/E).
All the reports were offered to the lady who was present at site who refused to sign the same and did not allow to paste the same. She also supplied documents and on the basis of that documents name of accused was mentioned as the user / owner of the subject premises.
Page 4 of 15 (Arun Kumar Arya)
ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 07.07.2014 CC No: 126/08 Police Station: Darya Ganj BSES Yamuna Power Ltd Vs. Vasi 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. About 100 other families reside at property bearing no. 632, Rang Mahal, Delhi.
7. Ld. Counsel Sh. Kshitiz Mahipal, 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 accused has been falsely implicated in the present case by the officials of the company. Approximately 100 families reside at 632, Rang Mahal, Delhi. One lady was found at premises who supplied the documents to PW 3 Sh. R. K. Aggarwal and on the basis of the documents name of accused was mentioned as the user / owner of the inspected premises.
The name of lady who was present at site during the inspection was not mentioned by the team in the inspection report. The team did not inquire about the relationship of the lady who was present at site with accused who stated his name as user / owner of the subject premises.
Page 5 of 15 (Arun Kumar Arya)
ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 07.07.2014 CC No: 126/08 Police Station: Darya Ganj BSES Yamuna Power Ltd Vs. Vasi PW 1 Sh. Rajeev Ranjan during cross examination admitted that he was not the member of the raiding team and has no personal knowledge of the case.
PW 2 Sh. D. P. Singh, admitted that he was not the member of the raiding team. He had not filed any document which authorized him to remove and seize the case property or instruct the inspection team to carry out the inspection at the subject premises. He did not have any knowledge about the load mentioned in the load report. He did not remember the name of consumer from whose service line the direct theft was being committed. He did not seize the other user's service line. He admitted that the photographs filed on record did not show that the said premises was the subject premises.
PW 3 Sh. R. K. Aggarwal, admitted during his cross examination that subject premises is a katra type premises where other families also reside. He did not remember the number of families residing at the katra. The subject premises is the part of katra. He did not remember the name of the registered consumer from whose service line electricity was tapped by the accused. He could not tell the meter number to which the service line was connected. He did not file any document which could show that he was authorized person to inspect the premises. He did not remember Page 6 of 15 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 07.07.2014 CC No: 126/08 Police Station: Darya Ganj BSES Yamuna Power Ltd Vs. Vasi the colour of the service line.
Neighbor / public persons were not made as a witness in inspection report as well as at the time of seizing of material evidence. One lady who was found at the subject premises but she was not photographed. CISF and police personnels were also not made as a witness by the team. He did not tell the number of the electricity pole from where the service line of other consumer was connected. He did not seize the service line from where the illegal tapping was going on. Address of the subject premises was also not mentioned in the photographs.
Counsel for the accused further urged that witness Sh. Zainul Hassan who was the member of the raiding team has not signed the report except the seizure memo.
Witness Sh. Chob Singh, Sh. Raj Karan and Sh. Zainul Hassan who were the member of the raiding team were not examined in the court by the company.
Counsel for the accused argued that entire case of the company 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 Page 7 of 15 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 07.07.2014 CC No: 126/08 Police Station: Darya Ganj BSES Yamuna Power Ltd Vs. Vasi accused was indulging in direct theft of electricity from the service line of other consumer by using illegal wire. Accused used the load to the tune of 6.116 KW for domestic purpose. Necessary photographs and visual recording of the connected load and irregularities for committing theft of electricity was taken by the joint team.
Sh. D. P. Singh (Manager Enforcement) was called at site to seize the material i.e. (1) PVC insulated 2 core Al cable, 1 nos, 2X6 MM Sqq, 9.5 meter approx, black colour.
(2) PVC insulated multicolour copper wire, two, 3X20 SWG, 2.25 + 2.25 = 4.5 meter approx., As per deposition of PWs, 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.
The name of accused 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 Page 8 of 15 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 07.07.2014 CC No: 126/08 Police Station: Darya Ganj BSES Yamuna Power Ltd Vs. Vasi of the company on 27.06.2007.
(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. Chob Singh, Sh. Raj Karan and Sh. Zainul Hassan, who were the member of the raiding team, also signed on the entire inspection report and was cited in the list of witnesses. No explanation has been assigned for the non examination of this witness.
PW 2 and PW 3 both witnesses identified the accused as he was present in the court as an accused, however, they did not mention that he was present at spot a the time of raid.
The name of accused is given in the inspection report as the user of the electricity "Vasi" as stated. PW 3 Sh. R. P. Aggarwal stated in his examination - in chief that he mentioned the name of accused as one lady met at site and told the name of the user / owner as Vasi. The inspection team had neither mentioned the name of lady, nor mentioned her relation with the accused. They also did not collect the documents which could show that accused was the user / owner of the subject premises. It is mandatory on their part to fulfill the abovesaid conditions to convict the accused which they failed to Page 9 of 15 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 07.07.2014 CC No: 126/08 Police Station: Darya Ganj BSES Yamuna Power Ltd Vs. Vasi do so. As per the recent judgment of Hon'ble High Court in Crl. L.P. No. 475/13 titled as BSES Yamuna Power Ltd Vs. Mohd. Sharif, the non - production of the lady, who was present at spot, in the court was fatal to the case of the company.
Company has neither made the lady as a witness in this case or nor associated other persons as a witness to prove their case. PW 3 disclosed in his examination - in - chief that CISF and local police personnels were with the team, but those were not examined as witnesses. The presence of CISF and local police personnels were not mentioned in the complaint and not disclosed by the PW 2.
As per case of the company, their allegations are that theft was going through the service line of other consumer. Company has not mentioned the name of the other consumer. They also did not examine the other user whose service line was tapped by the accused to prove their case.
PW 3 stated in his cross examination that he did not seize the service line from which the illegal tapping was going on. It is very surprising as if he has not seized the service line from where the theft was committed.
Site plan prepared by the member of the raiding team was required to be proved specifically however the same was not done. Page 10 of 15 (Arun Kumar Arya)
ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 07.07.2014 CC No: 126/08 Police Station: Darya Ganj BSES Yamuna Power Ltd Vs. Vasi The company was under obligation to prove this site plan to specify the exact location of the inspected premises.
10. The person who actually took the photographs was examined by the company. As per the recent judgment of Hon'ble 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/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 30.01.2008 after approximately 7 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. Page 11 of 15 (Arun Kumar Arya)
ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 07.07.2014 CC No: 126/08 Police Station: Darya Ganj BSES Yamuna Power Ltd Vs. Vasi 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 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 Page 12 of 15 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 07.07.2014 CC No: 126/08 Police Station: Darya Ganj BSES Yamuna Power Ltd Vs. Vasi 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. 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.
Page 13 of 15 (Arun Kumar Arya)
ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 07.07.2014 CC No: 126/08 Police Station: Darya Ganj BSES Yamuna Power Ltd Vs. Vasi
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. 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.
No signature of any public witness were obtained on the inspection report. It was also not proved by the company when the police personnels and CISF were with the team then how the lady did not allow the members of raiding team to paste the reports at site in their presence. No independent person was joined at the time inspection.
Page 14 of 15 (Arun Kumar Arya)
ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 07.07.2014 CC No: 126/08 Police Station: Darya Ganj BSES Yamuna Power Ltd Vs. Vasi
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 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 inspection dated 27.06.2007 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/07.07.2014 Page 15 of 15 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 07.07.2014