BSES Yamuna Power Ltd. v. Samender Singh & Ors.

1. By way of this appeal, the appellant BSES Yamuna Power Ltd. is seeking setting aside of the judgment dated 31.03.2012 [hereafter „impugned judgment‟], passed by the learned Additional Sessions Judge, Special Electricity Court-2, Karkardooma Court, Delhi [hereafter „Trial Court‟] in SC No. 32/2011, arising out of FIR NO. 288/2007, registered at Police Station Gandhi Nagar, Delhi for commission of offence punishable under Sections 135 and 138 of the Electricity Act, 2003.

2. Briefly stated, the facts of the present case are that on 16.12.2006, a complaint was filed by BSES Yamuna Power Limited [hereafter „complainant‟] against the accused persons alleging therein that on 09.10.2006, at about 12.30 PM, when an inspection was carried out in respect of K.No.1220R30302001[6] (New) 3KN0000387010 (Old) and Meter no. 2301984[6], by the joint team comprising Sh. R.V Singh (A.M.), Sh. Om Veer Singh (G.E.T.), Sh. Amit Sondhi (F.E.), Sh. Ravinder (L.M.) and Sh. Rajesh (L.M.), at premises No. 3025, Gali No.2, Dharmapura, Gurudwara, Gandhi Nagar, Delhi [hereafter „the premises‟]. During the course of inspection, it was found that accused Sunil and Samender Singh were committing direct theft of electricity by tapping directly from the LV mains. The abovesaid meter was found at the site, however, the total load of the premises was running directly through BSES LV mains. Documents were prepared at the spot. However, allegedly, the entire wire could not be removed due to opposition by the accused persons. The complainant company had assessed the demand on account of inspection of direct theft to the tune of Rs. 5,60,974/-, with a due date of 30.10.2006, however despite issuance of the bill, the accused persons did not pay the bill. Accordingly, a complaint was forwarded to the P.S. Gandhi Nagar, pursuant to which the present FIR was registered.

3. After completion of investigation, chargesheet alongwith complaint under Section 151 of the Electricity Act was filed under relevant sections. Cognizance of offences was taken and accused persons were summoned on 03.09.2008. Notice was framed under Section 251 of the Cr.P.C. against the accused persons on 31.08.2009, to which they pleaded not guilty. The prosecution examined 8 witnesses to prove their case. The statements of accused persons were recorded under Section 313 of the Cr.P.C., but they did not lead defense evidence. After completion of trial, the accused persons were acquitted of all the charges by way of the impugned judgment.

4. Aggrieved by the acquittal of respondent nos. 1 and 2, the learned counsel appearing on behalf of the appellant contends that the learned Trial Court has failed to appreciate the evidence on record in its proper perspective. It is argued that both respondents were present at the time of inspection and were duly identified by the prosecution witnesses during trial. The evidence on record clearly establishes that the respondents were indulging in direct theft of electricity by tapping the LV mains of the appellant Company. Though a meter was installed at the premises, the entire load of the premises was found running directly through LV mains, bypassing the meter. It is further submitted that the learned Trial Court has overlooked the statutory presumption contained in Section 135 of the Electricity Act, which provides that if any artificial means not authorised by the licensee are found for abstraction, consumption or use of electricity, it shall be presumed, unless rebutted, that such consumption was dishonestly caused by the consumer. The respondents have neither rebutted this presumption nor explained the circumstances under which the illegal tapping was found. On the contrary, their presence at the site has been admitted. It is further contended that the Trial Court erred in holding that the name of accused Samender Singh did not appear in the complaint (Ex. PW-3/A). The said complaint, in fact, clearly mentions the names of both accused persons. The observation of the learned Trial Court in para 11 of the impugned judgment, that the testimony of PW-2 should be analysed only in light of the complaint lodged by PW-3, is also erroneous. It is argued that PW-3, being the Manager, had reached the spot only after being called telephonically, and was authorised to seize the articles, whereas PW-2 and PW-6, who were part of the raiding team, have categorically deposed about the mode of theft and identified the accused persons. It is also argued that minor discrepancies in the testimonies of witnesses, recorded nearly five years after the incident, cannot dilute the otherwise consistent and cogent evidence adduced by the prosecution. The acquittal of the accused persons, despite such clear evidence, has resulted in miscarriage of justice. It is therefore prayed that the impugned judgment be set aside and the appeal be allowed.

5. On the other hand, the learned counsel appearing for respondent no. 2 submits that the appellant has failed to establish any case against him. It is stated that respondent no. 1, Samender Singh, unfortunately passed away on 14.06.2014 and was accordingly deleted from the array of parties vide order dated 10.08.2015 by this Court. Respondent no. 2 is merely his son and there is no material on record to show that he was either the consumer within the meaning of the Electricity Act or that he was in possession of, or using, the inspected premises. The appellant has neither alleged nor proved that respondent no. 2 was the owner of the premises. In the absence of any documentary evidence such as a rent agreement or proof of occupation, respondent no. 2 cannot be fastened with criminal liability. It is further submitted that the contradictions in the prosecution evidence, noted by the learned Trial Court, go to the root of the case. For instance, PW-2 did not name respondent no. 1 in his testimony and admitted that he learnt the name only after checking the records in his office. This shows that the witnesses were not even aware of the identity of the accused persons at the time of inspection. Moreover, both PW-2 and PW-3 admitted that the case property, which was allegedly seized, originally contained a “Two Core Cable.” However, when the parcel was opened before the learned Trial Court, it did not contain the said cable. This fundamental discrepancy casts serious doubt on the prosecution version and supports the defence case of false implication. It is contended that the testimony of PW-6, a lineman, is also unreliable, as he expressed complete ignorance of the case during cross-examination and was unable to answer material questions. Taken together, these inconsistencies clearly establish that the prosecution has failed to prove its case beyond reasonable doubt. It is argued that the learned Trial Court, therefore, rightly acquitted the respondents, and no ground for interference is made out in the present appeal. It is thus prayed that the appeal be dismissed.

6. This Court has heard arguments addressed on behalf of the appellant and the respondents, and has perused the material available on record.

7. At the outset, the relevant portions of impugned judgment and the observations of the learned Trial Court while acquitting the accused persons, are set out below: “...10 The first and foremost point which has been raised on behalf of the accused persons is that they have not been identified by the members of the team and particularly, by Shri

R. V. Singh, PW.2, who was the head of the said team. Not only this, it has been vehemently argued that Shri R.V. Singh, PW.2, Senior Manager, BYPL, has failed to name accused Samunder Singh in his testimony. To appreciate this argument, a close scrutiny of the testimony of R.V Singh, PW.2, BYPL, has to be made. Before examining the testimony of Shri R.V Singh, PW.2, Senior Manager, the testimony of Shri S.K. Gajbhiye, PW.3, Assistant Vice President has to be looked into as he has got exhibited the complaint made to the SHO, P.S Gandhi Nagar as Ex.PW.3/A, on the basis of which FIR Ex.PWl/A was registered. Shri S.K. Gajbhiye, P.W[3], Assistant Vice President was called by Shri R.V. Singh, PW.2, Senior Manager, at the premises inspected and he seized the material which was seized through Ex.PW.2/A, which was two core cables, single core PVC illegal wire, having length about 9 meters Ex.P-2 and the meter Ex.P-1. He has further got exhibited the complaint Ex.PW3/A which was made to the P.S Gandhi Nagar, on 16.12.2006.

11. If the complaint Ex.PW.3/A is looked into, it is noticed that he has stated in the complaint that on 9.10.2006, at about 12.30 p.m, an inspection was carried out in respect of K. NO. 1220R302001[6] ( New K. No.0000387010 (old) and Meter NO. 2301984[6], at premises, 3025, Gali No.2, Dharam Pura, Gurudwara, Gandhi Nagar, Delhi, by their joint team comprising of Shri R.V Singh, A.M, Shri Om Veer Singh, GET, Shri Amit Sondhi, F.E, Shri Ravinder, Lineman and Shri Rajesh, Lineman. He has further stated in the complaint that during the course of inspection, it was found that accused Sunil Kumar and Samender Singh were found indulged in direct theft of electricity by tapping directly from BSES LV Mains. He has further narrated that the meter was found at site, but the total load was running directly and the connected load was found to be 17.126 KW. Inspection report, site plan and physical diagram were prepared at site, necessary photographs were taken by Shri Pawan of M/s Arora Photographic Agency. The accused refused to put the signatures on the inspection report. He was called to seize the material which he did. Seizure memo was prepared, however, the complete wires were not removed due to high opposition of consumer public. If the facts narrated in complaint Ex.PW.3/A filed by Shri S.K. Gajbhiye, PW.3, Assistant Vice President are analysised, it comes out that this witness has narrated in his complaint that accused Sunil and Samender Singh were found indulged in direct theft of electricity by tapping directly from BSES LV Mains. Thus, the testimony of Shri R.V Singh, PW.2, Senior Manager has to be analysised in the light of facts stated by Shri S.K. Gajbhiye, PW.[3] Assistant Vice President, in his complaint Ex.PW.3/A. Shri R.V Singh, PW.[2] has stated in his testimony that when the house was inspected accused Sunii was present at site. He has further stated that though there was a meter installed, but another line was taken by accused from main line of BSES LV. On checking of the said meter, he found that the outgoing supply of the electricity was terminated and the whole supply was being used from the mainline of BSES LV, illegally with the use of illegal wire. He disclosed ail the facts of inspection to accused Sunii who was present at site. He has further narrated that he called Shri S.K. Gajbhiye, PW.3, Assistant Vice President who seized the illegal material through seizure memo Ex.PW2/A. This witness has further deposed that when he has came back from the spot to his office, he verified the record and found that the meter was installed in the name of accused Samender Singh. After deposing of these facts, he turned hostile and did not identify accused Sunil and Samander Singh in the court. However, when he has been crossexamined, he has narrated that accused Sunii Kumar and Samender Singh were the same person who indulged in direct theft of electricity. From the testimony of Shri R.V Singh, PW.2, Senior Manager, BYPL, both the accused were present at the time of inspection and they indulged in direct theft of electricity from LV Mains. Though Shri R.V Singh, Senior Manager, has named these two accused namely Shri Sunii Kumar and Samender Singh as the persons who indulged in illegal supply of electricity to their premises from BSES LV Mains, but in.the complaint Ex.PW.3/A got exhibited by Shri S.K. Gajbhiye, PW.3, Assistant Vice President the name of accused Samender Singh does not figure as one of the accused who indulged in illegal theft of electricity. The fact that accused Samender Singh has not been named as an accused involved in direct theft of electricity, though he has been named by Shri R.V Singh, PW.3, in his testimony, it creates doubt in the story put by the complainant company. Shri R.V Singh, PW.2, Senior Manager, having failed to identify the accused Sunii Kumar at the first instance and identified him after being cross-examined by Ld. APP for the State and his naming Shri Samender Singh as one of the co-accused creates suspicion. When Shri Samender Singh has not been named as accused involved in direct theft of electricity by Shri S.K. Gajbhiye, PW.3, Assistant Vice President, in his complaint Ex.PW3/A. thus, identifying co-accused Sunil Kumar after cross-examination by Ld. A.P.P for the State also casts doubt in identification by Shri R.V Singh, PW.2, Senior Manager. Not only this, there are material contradictions in the testimony of Shri R.V Singh, PW.2, Senior Manager and Shri S.K. Gajbhiye, P.W.3, Assistant Vice President. Shri S.K. Gajbhiye, PW.3, Assistant Vice President has stated in his cross-examination that before 12.30 p.m, he was not aware regarding theft in the premises and he was called by Shri R.V Singh, PW.2, Senior Manager to seize the case property. However, Shri R.V Singh, Senior Manager, PW.[2] has stated in his examination- in -chief that a raiding team was made at the instance of Shri S.K. Gajbhiye, P.W.3, Assistant Vice President. Therefore, the testimony of Shri S.K. Gajbhiye, P.W[3], Assistant Vice President coupled with the testimony of Shri R.V Singh, PW.2, Senior Manager, fails to connect both the accused with the alleged offence.

12. Coming to the testimony of other witness to the inspection Shri Ravinder, PW.6, Lineman, it is noticed that he has stated in his testimony that on 9.10.2006 at about 12.30 p.m, he alongwith other members of the team viz; R.V Singh, Omvir Singh, Amit Sodhi and Rajesh went to premises bearing NO. 3025, Gali No.2, Dharampura Gurdwara, Gandhi Nagar, Delhi, where they found that both the accused persons were stealing the electricity through BYPL, LV Mains. He has further deposed that at the instructions of Shri R.V Singh, Team leader, he removed the wires from the LV Mains. Photography was done in his presence. Shri S.K. Gajbhiye, Manager (Enforcement) was called at the site to seize the material which was seized through seizure memo Ex.PW2/A. The copy of seizure memo was tendered to the accused, but they refused to sign the same. The said remarks have been noted at point B. He has also got exhibited the meter as Ex.P-1, PVC single core wire as Ex.P-2. However, if his cross-examination is perused, it is noticed that this witness has failed to answer the question put by Ld. Counsel for the accused. He has either stated that "cannot say" or "I do not remember". Even he has failed to state as to how many wires were used for stealing the electricity; failed to tell as to whether the electricity was being stolen through hook or it was tied; failed to see as to who seized the material and even failed to state the length of the wire. Though he is witness to the inspection, but he has failed to narrate true facts. Therefore, his testimony is also of no assistance to the prosecution.

13. Coming to the testimony of other witnesses viz; ASI Brij Mohan, PW.l who has got exhibited FIR Ex.PW.l/A; Shri Nafees Ahmed, PW.4, DGM, who has handed over the case property at P.S Gandhi Nagar vide memo Ex.PW.4/A; H.C Harnam Singh, PW.5; who has proved arrest memo of both the accused persons Ex.PW.5/1 and Ex.PW.5/2 as well as personal search memo Ex.PW.5/3 and Ex.PW.5/4 respectively; Shashi Kant, PW.[7] is also the witness of seizure of case property seized vide memo Ex.PW.4/A which was handed over by Shrl Nafees Ahmad to I.O. Governor Singh and Governor Slngh.PW.8., who is the I.O. arrested the accused persons vide arrest memo Ex.PW.5/1 and Ex.PW.5/2, conducted their personal search vide memo Ex.PW.5/3 and Ex.PW.5/4; prepared seizure memo Ex.PW.4/A, siteplan Ex.PW.8/1, proved CD Ex.PW.8/2 and recorded the statement of witnesses are all of formal nature and their testimonies do not require any examination.

14. Not only this, even the case property, which is PVC single core wire, 10 mm square, 9 metre black colour, two pieces Ex.P-2 and meter Ex.P-1 has been got exhibited in the testimony of Shri S.K. Gajbhiye, PW.3, Assistant Vice President as per seizure memo EX.PW.2/A. However, when this witness has been crossexamined, he has narrated that the case property does not contain two core cable as mentioned In seizure memo Ex.PW.2/A. To quote from his testimony,"/t is correct that the case property does not contain the two core cable mentioned in seizure memo EX.PW.2/A." if seizure memo Ex.PW.2/A is looked Into, It is noticed that It contains three items (i) meter, (ii) 1 two core cable, 10 mm square, 2 metre black colour wire and (iii) 1 single core PVC aluminium, two pieces, 9 metre black colour wire. When seizure memo Ex.PW.2/A has three items, one item i.e two core cable has not been produced in the Court by Shri S.K. Gajbhiye, PW.3, Assistant Vice President, this non-production of one of the items creates doubt. It is not the case of seizing one of the items, but is the case of non-production of one item alongwith other items seized at the time of inspection. Non seizure and nonproduction of wire might not have affected the case of the prosecution if the testimony of other witnesses had been reliable. The fact that testimony of Shri R.V. Singh, PW.2, Senior Manager, BYPL is not trustworthy, non production of 2 core cable seized through memo Ex.PW.2/A, certainly affects the case of the prosecution. Thus, both the accused persons cannot be connected with the alleged offence.

15. In view of the above findings, I am of the opinion that the prosecution has failed to prove Its case against both the accused persons beyond reasonable doubt. Thus, the benefit of doubt goes to the accused persons. Accused Samender Singh and Sunill are acquitted, their bail bonds are cancelled and sureties stand discharged. File be consigned to Record Room....”

8. Before appreciating the rival contentions, this Court finds it apposite to consider the legal position concerning the scope of interference permissible to be exercised by the Appellate Court in an appeal against acquittal. In Babu Sahebagouda Rudragoudar and others v. State of Karnataka: (2024) 8 SCC 149, the Hon‟ble Supreme Court observed that in an appeal against acquittal, the Appellate Court is empowered to reappreciate the entire evidence based on which acquittal was rendered; however, the Court should be slow in interfering with the said judgment as there is double presumption in the favour of the accused, firstly, that of innocence until being proven guilty by virtue of it being a fundamental principle under the criminal law jurisprudence, secondly, that of the accused having secured an acquittal from the Trial Court which reaffirms the first presumption. Thus, as a matter of fact, the Appellate Court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded based on the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt, and no other conclusion was possible [Ref: H.D. Sundara v. State of Karnataka: (2023) 9 SCC 581; Rajesh Prasad v. State of Bihar: (2022) 3 SCC 471]. It is in the said legal backdrop that the present appeal has to be decided by this Court.

9. Turning to the present case, this Court finds that the prosecution‟s version suffers from several material contradictions and inconsistencies which go to the very root of the matter and render the case doubtful.