Delhi District Court
Through: Sh. Jitender Shankar vs . on 15 January, 2015
IN THE COURT OF SHRI ARUN KUMAR ARYA,
ADDITIONAL SESSIONS JUDGE, SPECIAL COURT
(ELECTRICITY), TIS HAZARI COURT, DELHI
CC No. 302/08
Unique case ID No.02402R0055132009
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 with Ld. Counsel for the company.
Vs.
Ram Raj (RC & User)
S. No: 17, Ground Floor,
Dr Moonje CHOPP, New Delhi Railway
Station, Pahar Ganj, Delhi ................ Accused
Through: Sh. Nand Kishore, Adv. for accused
Date of Institution : 13.05.2008
Judgment reserved on : 06.01.2015
Date of Judgment : 15.01.2015
Final Order : Acquitted
CC No: 302/08
Police Station: Pahar Ganj
BYPL Vs. Ram Raj Page 1/14
JUDGMENT
1. As per complaint, on 17.01.2008 at about 11:15 AM, a team comprising of Sh. R. P. Aggarwal (AM), Sh. R. P. Sharma and Sh. Ram Sant had conducted a raid at premises no. S. No: 17, Ground Floor, Dr Moonje CHOPP, New Delhi Railway Station, Pahar Ganj, Delhi. At the time of inspection, accused was the user as well as registered consumer of the premises and indulging in direct theft of electricity. During inspection Sd electronic meter found installed but electric supply was being used direct from the BSES service cable of the meter through wire with 3 rim socket for the commercial purpose. Videography / photography showing the connected load and mode of theft of direct theft was conducted by Sh. Dinesh from M/S Arora photo Studio. The total connected load of 4.901 KW KW/NX/DT was assessed by the inspection team which was illegally used by the accused for commercial purpose.
The material evidence which was seized by A. Manager used for direct theft of electricity i.e.
1. One 1 Q electronic meter no. 13606571.
2. PVC copper wire black colour two.
3. 15A 3 pin socket one.
The copy of inspection reports and supplementary bill were duly sent to the accused. The accused is booked for the offence CC No: 302/08 Police Station: Pahar Ganj BYPL Vs. Ram Raj Page 2/14 of direct theft of electricity. Subsequently, theft assessment bill for a sum of Rs.1,83,411/ was raised against the accused. On the failure of the accused to deposit the same, present complaint was filed against him.
2. The present complaint was filed by Sh.C.B. Sharma, Authorized Officer of company. 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, Delhi110032 and its branches are located at different places in Delhi. The company is the licensee for supply of electricity in major parts of Delhi, including the premises bearing S. No: 17, Ground Floor, Dr Moonje CHOPP, New Delhi Railway Station, Pahar Ganj, Delhi (to be referred as "premises in question"
hereinafter) where the offence has been allegedly committed by the accused.
3. The accused was summoned U/S 135 of the Electricity Act 2003 by my ld. predecessor vide order dated 22.08.2008 after presummoning evidence. 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 vide order dated 05.05.2009 to which he pleaded not guilty and claimed trial.
4. Complainant in support of its case examined three witnesses PW1 Rajeev Ranjan (Authorized representative), CC No: 302/08 Police Station: Pahar Ganj BYPL Vs. Ram Raj Page 3/14 PW2 Sh. R. P. Sharma (Sr. Manager) and PW3 Sh. R. P. Aggarwal (Sr. Manager).
PW1 Sh. Rajeev Ranjan, deposed that the present complaint Ex. CW1/A was filed by Sh. C. B. Sharma. He was authorized vide letter of authority in his favour Ex. CW1/A1 to act, appear and plead on behalf of the company in this case.
PW - 2 R. P. Sharma, deposed that on 17.01.2008 at 11:15 AM, on the reference given by the Business Manager, Pahar Ganj, he along with Sh. R. P. Aggarwal and Sh. Ram Sant conducted a raid at the premises bearing shop no. 17, Ground Floor, Dr Moonje CHOPP, New Delhi, Railway Station, Pahar Ganj, Delhi. At the time of inspection, one single phase meter was found at the premises and supply was used directly from the BSES incoming service cable of meter through illegal wires with 3 pin socket. The connected load of 4.901 KW was found which was being used for commercial purpose.
The videography qua the connected load and theft of electricity was taken by Sh. Dinesh of M/S Arora Studio. The videography i.e. compact disk (Ex. CW 2/D). The inspection report Ex. CW 2/A, load report Ex. CW 2/B and seizure memo Ex. CW 2/C were prepared at site which bore his signature at point A. Illegal wire, 3 pin socket and single phase electronic meter bearing no. 13606571 were removed from the site.
PW - 3 Sh. R. P. Aggarwal, deposed that on 17.01.2008 CC No: 302/08 Police Station: Pahar Ganj BYPL Vs. Ram Raj Page 4/14 at about 11:15 AM, he along with Sh. R. P. Sharma and Sh. Ram Sant reached at the premises shop no. 17, Ground Floor, Dr Moonje CHOPP, New Delhi, Railway Station, Pahar Ganj, Delhi and made the similar allegations against the accused. He also deposed that entire inspection reports were offered to the representative of the accused for signature but he refused to sign the same and did not allow to paste the same at premises.
5. In statement recorded U/S 313 Cr.PC, accused had denied the allegation and stated that he has been falsely implicated in the present case and no raid was conducted at his premises.
6. Sh. Nand Kishore, Adv. for the accused had argued that accused is falsely implicated in this case and company failed to bring any incriminating material against him.
During cross examination PW - 2 Sh. R. P. Sharma, admitted that two persons met them but they did not tell their names. The persons found at the site refused to receive the copy of inspection report and did not allow the team to paste the at the premises. They did not make any attempt for joining any person from the locality as public witness.
During cross examination PW - 3 Sh. R. P. Aggarwal, admitted that team on the verbal instruction of Sh. N. Roy conducted raid at the premises. Two persons met but they did not disclose their CC No: 302/08 Police Station: Pahar Ganj BYPL Vs. Ram Raj Page 5/14 identity. They were the workers of accused and they told that premises belonged to accused. Through telephone, he confirmed the name of registered consumer as Ramraj. The person present at site refused to sign and paste the inspection report. Entire inspection was carried out in peaceful manner.
Witnesses of the company admitted that one meter bearing no. 13606571 was installed and registered consumer of the said meter was accused, but they did not file any record which shows that accused was the actual registered consumer of the premises.
They did not procure any documents pertaining to the ownership / occupancy on record. No inquiry on the aspect of occupancy of the premises was made. They have no written authority to conduct the raid at the premises. No independent person was joined at the time of inspection / seizure of case property. It was further submitted that there was no evidence on record which connect the theft with the accused. The company failed to prove the occupation of accused in the inspected premise. It was contended that company had failed to prove its case so, accused is entitled to be acquitted in this case.
7. Per contra, counsel for company has argued that during inspection, accused was the user as well as RC of the premises and indulged in direct theft of electricity. Sd electronic meter found installed but electric supply being found used direct from CC No: 302/08 Police Station: Pahar Ganj BYPL Vs. Ram Raj Page 6/14 the BSES service cable of the meter through wire with 3 rim socket for commercial purpose. The connected load of 4.901 KW was used by the accused for commercial purpose. Videography / photography showing the connected load and mode of direct theft was done by Sh. Dinesh from M/S Arora Photo Studio at site. The accused was booked for offence of direct theft of electricity. As per deposition of PW2 and PW - 3, the company has proved its case against the accused beyond reasonable doubt, accordingly, accused is liable to be convicted in this case.
8. I have gone through the evidence adduced on record and heard arguments of counsel for both parties.
The company failed to examine Sh. Ram Sant who was member of raiding team. No explanation has been assigned for non examination of this witness. No independent person was joined at the time of inspection and seizure of the case property. It is not mentioned in the inspection report whether accused was occupying the premises in the capacity of owner or tenant or was an unauthorized occupant. 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, it was held that the accused was rightly acquitted by the trial court as company failed to prove the occupancy of accused by positive evidence.
CC No: 302/08 Police Station: Pahar Ganj BYPL Vs. Ram Raj Page 7/14 Inspection report which is part of meter details (Ex. CW 2/A) in column no.2.2 name of the user is Ram Raj ("as stated"), however, it was not specified as to who disclosed the name of accused. The reports which are prepared at the time of inspection are silent about the fact whether who refused to sign the same whether it was accused or person present there, as it was reported that 'refused to sign'. It was nowhere stated as to who prepared the inspection reports.
Both witness admitted that two persons met them during inspection. PW - 3 admitted that entire inspection was carried out in a peaceful manner, if no hindrance was created while conducting the raid, then how person or accused refused to sign the reports at the site.
Company witnesses admitted that one meter bearing no. 13606571 was installed and accused was the registered consumer of the said meter. They also admitted that they mentioned the name of accused after confirming the same by the company on telephone at site. They did not file any record such as electricity bill or form showing the sanction of electricity connection which could have proved that accused was the actual registered consumer of the premises. Company was under obligation to check before or after filing the complaint whether accused was the actual registered consumer of the meter in question which they failed to do so. CC No: 302/08 Police Station: Pahar Ganj BYPL Vs. Ram Raj Page 8/14
9. The company did not procure the documents pertaining to occupancy or the ownership of the inspected premises. No inquiry in this respect was conducted by the company at the time of inspection or before filing the present complaint. All the above noted facts were considered in the 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 wherein, the order of trial court was confirmed in which accused was acquitted as company failed to procure the documents of occupancy / ownership.
10. The company was under obligation to prove as to who was in the actual possession of the inspected premises at the time of inspection. The company failed to prove that it was accused Ram Raj was the user as well as registered consumer of the premises. So, as per 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 did not fall within the ambit of "WHOEVER" as enumerated U/S 135 of the Electricity Act, 2003 and in this case also judgment of trial court was affirmed acquitting the accused on the aforesaid count.
In the complaint name of photographer Sh. Dinesh was added by the company with black pen, however, his name was not cited in the list of witnesses and also he was not examined by the company in the court. His name was added in the complaint with the CC No: 302/08 Police Station: Pahar Ganj BYPL Vs. Ram Raj Page 9/14 black pen. The above said fact clearly shows that company itself not sure whether who clicked the photographs at the site. If he actually took the photographs then why he was not examined by the company in the court. As per judgment of Hon'ble High Court in 2012 (4) JCC 2713 titled as BSES Rajdhani Power Ltd. Vs. Sunheri & Ors. the company was under obligation to examine the person took photographs or recorded the videography.
The Compact disc (Ex.CW2/D) 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. Even if, no certificate was filed, the company could have proved the electronic record by leading secondary evidence under subclause ''d'' of section 65 of Evidence Act. (Achchey Lal Yadav Vs. State Crl. App. No. 1171/12 decided on 06.09.2014 Hon'ble High Court of Delhi).
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 13.05.2008 after 5 months of inspection. Prompt CC No: 302/08 Police Station: Pahar Ganj BYPL Vs. Ram Raj Page 10/14 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 case improbable when such delay is properly explained. However, delay in lodging the complaint is always fatal to prosecution case (Jarnail Singh Vs. State of Haryana 1993 Crl.LJ 1656 SC).
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 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. CC No: 302/08 Police Station: Pahar Ganj BYPL Vs. Ram Raj Page 11/14 The company has not lodged any FIR in this case, though the CISF and local police accompanied the team, thereby violating the aforesaid regulation.
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 and mentioned in the list of witnesses was not examined in the court either, so the complaint Ex. CW1/A 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 CC No: 302/08 Police Station: Pahar Ganj BYPL Vs. Ram Raj Page 12/14 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.
16. In the present case, the testimony of witnesses have material contradictions. It is relevant to note that all the witness failed to prove that accused was the user as well as registered consumer of the electricity at the time of inspection. A combined reading of the statements of the witnesses along with their cross examination failed to show that any documentary proof was obtained by the raiding team to prove that he was in the occupation of the inspected premises at the time of inspection. Thus, the complainant failed to discharge the initial burden of proof under the proviso to Section 135 (1) of the Act that person / accused charged was the consumer. The judgment of Hon'ble High Court of Delhi in CRL.A. 438/2012 & Crl. M. B. 754/2012 titled as Manoj Kumar Vs. BSES Rajdhani Power Ltd. dated 14.05.2013 is relied on this aspect. 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 itself.
It is also noted that in inspection report, the address of he CC No: 302/08 Police Station: Pahar Ganj BYPL Vs. Ram Raj Page 13/14 premises is given as Dr. Moonje Chowk, Opposite New Delhi Railway Station, PHG, whereas the complaint have been filed furnishing the address of the accused as S. No: 17, Ground Floor, Dr Moonje CHOPP, New Delhi Railway Station, Pahar Ganj, Delhi. This purely shows the carelessness of the company in filing these criminal cases.
17. 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 stands canceled and surety 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 17.01.2008 be released by the company after expiry of period of appeal.
File be consigned to record room.
Announced in open court ( Arun Kumar Ayra )
ASJ/Special Court (Elect.)
Tis Hazari/Delhi/15.01.2015
CC No: 302/08
Police Station: Pahar Ganj
BYPL Vs. Ram Raj Page 14/14