Delhi District Court
Bypl vs . Md.Asim & Ors. on 28 October, 2014
CC No. 07/08
BYPL Vs. Md.Asim & ors.
IN THE COURT OF SHRI ARUN KUMAR ARYA,
ADDITIONAL SESSIONS JUDGE, SPECIAL COURT
(ELECTRICITY), TIS HAZARI COURT, DELHI
CC No. 07/08
Unique case ID No.02402R0023752009
BSES Yamuna Power Ltd.
Having its Registered office at
Shakti Kiran Building,
Karkardooma, Delhi-110032
(Through its authorized representative
Sh.C.B.Sharma) ............ Complainant
Through : Sh. Jitender Shankar, AR with
Ld.Counsel for the company.
Vs.
(1) Md.Asim (Dishonest user)
S/o. Sh.Md. Nakki
T/o. Pramod Malik/ Pappu Malik
R/o. H.No.163, 2nd floor, Gali BagichiWali,
Punja Sharif, Kashmiri Gate, Delhi-6
Also service at
R/o.H.No. 668, Gali Nai Bandan,
Chhota Bazar, K.Gate, Delhi
(2) Pramod Malik/ Pappu Malik (Owner)
R/o. H.No.163, 2nd floor, Gali BagichiWali,
Punja Sharif, Kashmiri Gate, Delhi-6
.............. Accused persons
Through : Ms.Mamta Chandra, Adv. for accused no.1
Sh.Kshtiiz Mahipal, Adv. for accused no.2
Date of Institution : 02.01.2008
Judgment reserved on : 27.10.2014
Date of Judgment : 28.10.2014
Final Order : Acquittal
Page 1
CC No. 07/08
BYPL Vs. Md.Asim & ors.
JUDGMENT
1. As per complaint, on 17.08.2007 a team comprising of Sh. A.K.Sharma, Sh. Ratan Singh (both Asstt. Manager), Sh.B.S.Sharma, Sh. Jawarhar (Sr.Lineman), Sh.Krishan Kumar (Jr.lineman) and Sh.Joginder Singh (Asstt. Lineman) had conducted a raid at premises bearing no. 163, 2nd floor, Gali Bagichi Wali, Punja Sharif, Kashmere Gate, Delhi. At the time of inspection, accused no.1 (user)/ tenant in the premises was found indulging in direct theft of electricity by directly tapping the BSES LV mains through illegal wires i.e one piece of 2 core 10 mm2 cable of 8 m black colour, one piece of 3/20 SWG flexible wire of 2 mtr yellow colour, three pieces 7/20 SWG flexible wire of 24.5 mtr f yellow colour, eight power board (plug and switch) of cream colour of 16 Amp, two main switch of 32 Amp of cream colour (CONA make) and one 7/20 SWG mix colour ( white & Blue ) wire of 5 mtr.
No meter was found at site. Necessary photographs / videography showing irregularities were taken by member of raiding team. The total connected load which was illegally used by the accused for industrial purpose was assessed by the inspection team as 14.500 KW/IX/DT. The above said illegal material i.e one piece of 2 core 10 mm2 cable of 8 m black colour, one piece of 3/20 SWG flexible wire of 2 mtr yellow colour, eight power board (plug + switch) of cream colour of 16 Amp, two main switch of 32 Amp of cream colour (CONA make) and one 7/20 SWG mix colour ( white & Blue ) wire of 5 mtr and three pieces yellow colour 7/20 SWG flexible wire of 24.5 mtr. were seized. The copy of inspection reports and copy of the supplementary bill were duly sent to the accused. The accused was booked for the offence of direct theft of electricity.
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2. Subsequently, theft assessment bill in the sum of Rs.3,65,974/- was raised against the accused. On the failure of the accused to deposit the same, present complaint was filed against the accused.
3. The present complaint was filed by Sh. C. B. Sharma, Authorized Officer of company. Later on, Sh. Rajeev Ranjan, Sh. Mukesh Sharma and Jitender Shankar were substituted as authorized representative by order of this court. 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 - 110032 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 no. 163, 2nd floor, Gali Bagichi Wali, Punja Sharif, Kashmere Gate, Delhi where the offence has been allegedly committed by the accused persons.
4. The accused persons were summoned U/s 135 r/w section 151 of the Electricity Act 2003 by my ld. predecessor vide order dated 15.01.2008 after recording the pre-summoning evidence. Notice u/s 251 Cr.PC of offence punishable u/s 135 and 151 of Electricity Act, 2003 was framed against the accused persons by my ld. predecessor court vide order dated 06.03.2010 to which accused persons pleaded not guilty and claimed trial.
5. Complainant in support of its case examined three witnesses PW-1 Rajeev Ranjan (Authorized representative), PW-2 Sh.A.K.Sharma (Sr.Manager) and PW-3 Sh.Ratan Singh (Sr. Manager).
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PW-1 Sh. Rajeev Ranjan deposed that the present complaint Ex.CW-1/B was filed by Sh.C.B.Sharma. He was authorized vide letter of authority in his favour Ex. PW-1/A to act, appear and plead on behalf of the company in this case.
PW-2 Sh.A.K Sharma, Senior Manager deposed that on 17.08.2007 he was posted as Assistant manager in the company. A team consisting of him, Shiv Ratan Singh ( AM ), Sh. B.S. Sharma (Senior Electric Fitter), Sh. Jawahar (Senior LM), Sh. Kishan (Junior LM) and Sh. Joginder Singh (ALM) had conducted a raid at premises no.163 SF gali Bagichi Wali Panja Sarif, Kashmere Gate at about 6.20 pm. During inspection, it was found that accused persons were stealing electricity through illegal wires from BSES LV mains. The necessary photographs (Ex.CW-2/1) were taken showing the connected load on the premises. A CD (Ex CW-2/E) was also prepared. During inspection they called Sh. Rakesh Kumar (Manager) O & M Chandni Chowk to seize the property who arrived at the spot and on his instruction they seized the illegal material as per seizure memo. The case property was sealed in a gunny bag. The inspection report (EX. CW-2/B), meter detail (Ex.CW-2/D), seizure memo (Ex. CW-2/E) and load report (Ex.CW-2/C) were prepared at site. The inspection report, load report were in the handwriting of Sh. Ratan Singh and bore his signature at point A. The connected load was used for the industrial purpose. After preparation of entire inspection report the same were offered to the representative of both the accused to sign the reports but they refused to sign and did not allow to paste the same.
Witness correctly identified the case property i.e two core aluminum wire of 8 meter in length of one piece of black colour, 3/20 SWG flexible wire one piece of 2 meter of yellow colour, 7/20 SWG Page 4 CC No. 07/08 BYPL Vs. Md.Asim & ors.
flexible wire, 3 piece of length about 24.5 meter in total of yellow colour, 8 number power boards along with switch of cream colour 16 Ampere each, main switch 32 Ampere cream colour and 7/20 SWG mix colour wire length about 5 meter of colour white and blue along with carbon copy of seizure memo dated 17.08.2007. Entire wire and switch board along with power plug and main switch as Ex.P1.
PW-3 Sh. Ratan Singh, Senior Manager deposed on the same lines of PW-2 A.K.Sharma.
6. In statement recorded u/s 313 Cr.PC, accused persons have denied the allegations and stated that they have been falsely implicated in the present case.
7. Sh. Kshitiz Mahipal, Ld. Counsel for accused no.2 (Pramod Malik) has argued that accused is falsely implicated in this case and company failed to bring any incriminating material against him.
During cross examination PW-2 admitted that on the instructions of DGM Chandini Chowk, the team inspected the said premises. DGM had issued office order regarding evening raid however no such order is placed on record. Accused no. 2 Pramod Malik was not present at site. There is no photograph of the inspected premises on record. There was no photograph of alleged BSES main line from which the alleged theft was taking place. He did not remember the name of those boys present at site who revealed that the user of the premises was Mohd. Aseem. He did not identify the accused no. 1 Aseem who was alleged to be user of the said premises. Accused no. 2 was also not identified. One police constable Page 5 CC No. 07/08 BYPL Vs. Md.Asim & ors.
was also with the inspection team but was not made as witness in the inspection report. No documents regarding ownership and tenancy of the premises in question were seized. He did not know what commercial activity was taking place in the raided premises.
As per PW-3, the team had not taken any photograph of user Asim. Company had not checked the identity proof of user. He had not mentioned the name of worker in inspection report. PW-3 also did not identify the accused persons in the court. He could not tell whether the property belonged to accused no. 2.
Ms. Mamta Chandra, Ld. counsel for the accused no.1 (Asim) argued that, as per PW-3, they have not enquired about the owner / tenant of the premises in question. The inspection report was prepared by them implicating the accused at the behest of the workers present at the site. He did not knew whether the accused was tenant of shop bearing no. 162 on the 2nd floor, situated at Gali Bagichi wali, Kashmiri Gate and that the said tenancy was to be commenced from 20.07.2007.
The documents of ownership / occupancy were not procured by the team. 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 inspection / seizure of case property. It was further submitted that there was no material 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.
8. Per contra, Counsel for company has argued that during inspection, accused no.1 (user)/ tenant in the premises Page 6 CC No. 07/08 BYPL Vs. Md.Asim & ors.
was found indulging in direct theft of electricity by directly tapping the BSES LV mains through illegal wires i.e one piece of 2 core 10 mm2 cable of 8 m black colour, one piece of 3/20 SWG flexible wire of 2 mtr yellow colour, three pieces 7/20 SWG flexible wire of 24.5 mtr of yellow colour, eight power board (plug and switch) of cream colour of 16 Amp, two main switch of 32 Amp of cream colour (CONA make) and one 7/20 SWG mix colour ( white & Blue ) wire of 5 mtr. No meter was found at site. Necessary photographs / videography showing irregularities were taken by member of raiding team. The total connected load which was illegally used by the accused for industrial purpose was assessed by the inspection team as 14.500 KW/IX/DT. The accused persons were booked for offence of direct theft of electricity. As per deposition of PW-2 and PW-3 the company has proved its case against the accused persons beyond reasonable doubt. Accordingly, accused are liable to be convicted in this case.
9. I have gone through the evidence adduced on record and the arguments of counsel for company and the accused.
The company failed to examine Sh. B.S.Sharma, Sh. Jawahar (Sr.L/M), Krishan Kumar (Jr.Lineman), Joginder Singh (Asstt. lineman) who were the member of raiding team. No explanation has been assigned for the non examination of these witnesses. 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. 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 Page 7 CC No. 07/08 BYPL Vs. Md.Asim & ors.
court.
The inspection report (Ex.CW-2/B) states in the column name of the user as Md. Asim, however, it was not specified as to who disclosed the name of accused. The complaint is silent about the fact whether accused was found at the spot or not.
The inspection reports were offered to the representative of accused for signing, however the name of representative of accused was not given. As per PW-2 one police official was with the team however PW-3 denied the same. The worker / representative of the accused who met at the spot was neither named in the complaint nor in inspection reports. The police official was also not examined. As per complaint there was no meter at spot, however, during cross examination Pw-2 admitted that some meters were installed at the ground floor. There are material contradictions in the testimony of witness, complaint and in inspection report. This creates doubt on the inspection report itself.
10. 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 by Hon'ble High Court of Delhi 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 affirmed and accused was held to be rightly acquitted by trial court.
11. 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 Md.Asim who was the user of the premises. So, as per Page 8 CC No. 07/08 BYPL Vs. Md.Asim & ors.
recent judgment of Hon'ble High Court in Crl.A.No. 816/2010 dated 22.03.2012 titled as BSES Rajdhani Power Ltd Vs. Ruggan in which it was held that accused did not fall within the ambit of "WHOEVER" as enumerated U/S 135 of the Electricity Act, 2003 as company failed to prove that accused was in actual possession of the inspected premises.
12. 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 member of raiding team who captured photographs at site.
The Compact disc (Ex.CW-2/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 sub-clause ''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).
13. 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 02.01.2008 after approximately 5 months of inspection. Prompt and early reporting of the occurrence by the Page 9 CC No. 07/08 BYPL Vs. Md.Asim & ors.
informant with all its vivid details gives an assurance regarding truth of its version. The FIR in the present case is not lodged by the company against the accused persons, thus, the company had failed to comply the abovesaid regulation.
14. 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.
15. 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.
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.
16. The present complaint was filed by Sh.C.B. Sharma stated to be authorized representative of company but later Page 10 CC No. 07/08 BYPL Vs. Md.Asim & ors.
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.CW-1/B remains unproved on record.
17. 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.
18. In the present case, company has not proved their case by positive evidence as the testimony of PW-2 and PW-3 has 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 Page 11 CC No. 07/08 BYPL Vs. Md.Asim & ors.
inspection report. There is no material evidence on record which connect the theft with the accused persons.
19. In view of the foregoing reasons, company has failed to prove its case against the accused persons beyond reasonable doubt, they are accordingly acquitted. Bail bond of the accused persons canceled and surety is discharged. Amount, if any, deposited by the accused persons 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 17.08.2007 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/28.10.2014
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CC No. 07/08
BYPL Vs. Md.Asim & ors.
28.10.2014
Present: Sh. Jitender Shankar, Authorized Representative for the
complainant company.
Accused no.1 on bail with Ms. Mamta Chandra, Adv. Accused no.2 on bail with Sh.Kshitiz Mahipal, Adv.
Vide separate judgment announced today, both accused are acquitted of the charges punishable U/S 135 & 151 of Electricity Act 2003. Bail bond of the accused persons are cancelled and surety discharged. Amount, if any, deposited by the accused persons as a condition for bail be released by the complainant company after expiry of period of appeal.
However, in terms of Section 437 (A) Cr.PC., accused are directed to furnish a bail bond for the amount of Rs. 40,000/- 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.
Necessary bail bond with surety, in compliance with the order, has been furnished by the accused along with latest passport size photographs and residential proof is accepted.
File be consigned to record room.
Announced in open court (Arun Kumar Arya)
ASJ/Special Court (Elect.)
Tis Hazari/Delhi/28.10.2014
Page 13