Delhi District Court
Bypl vs . Shammi on 5 March, 2014
CC No.366/07
BYPL Vs. Shammi
IN THE COURT OF SHRI ARUN KUMAR ARYA,
ADDITIONAL SESSIONS JUDGE, SPECIAL COURT
(ELECTRICITY), TIS HAZARI COURT, DELHI
CC No. 366/07
Unique case ID No.02402R0022742009
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.
Shammi
Kothi No. 24, Near Permanent Lok Adalat,
Mata Sundri Road, New Delhi .............. Accused
Date of Institution : 20.07.2007
Judgment reserved on : 26.02.2014
Date of Judgment : 05.03.2014
Final Order : Acquittal
JUDGMENT
Briefly as per complaint, on 06.09.2006, at around 01.30 pm, an inspection was carried out by the officials of the complainant company comprising of Sh. Shivender Kumar (AM), Sh.Sanjeev Kumar (Engg.), Sh.Naresh Kumar and Sh.Munna Lal (both lineman) at the premises bearing Kothi no.24, Near Permanent Lok Adalat, Mata Sundri Road, New Delhi.
2. During inspection, accused was found the user of the electricity supplied at the premises. Accused was using Page 1 (Arun Kumar Arya) ASJ / Special Court (Electricity)/05.03.2014 CC No.366/07 BYPL Vs. Shammi the electricity of the company distributed / transmitted through the main line. The accused had connected wire directly to the feeder pillar of the company in order to illegally abstract and use the electric energy at the said premises. No meter was found at site and the entire connected load of 6.738 KW/DX was running directly by illegally connected with the main line of the company which was being used for domestic purpose. The videography of the direct theft was taken by the M/s. Arora Photo Studio. The illegal wires i.e two pieces of single core aluminium wire and one piece of two core aluminum cable were seized by Sh.S.K.Gajbhiye (Manager) which was used for direct theft of electricity. The accused was present during the inspection, search and seizure. After the raid and preparation of the inspection reports, same were tendered to the accused but he neither accepted nor allowed the team member to paste the inspection reports at the premises. The accused was booked for the offence of direct theft of electricity.
3. 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 having its branch office at different places in Delhi. The present case was filed through Sh. C.B. Sharma, Authorized Representative. Thereafter, Sh. Rajeev Ranjan and later on Sh. Mukesh Sharma were substituted as authorized representative by order of this court.
4. Subsequently, theft assessment bill in the sum of Rs.1,74,766/- was raised against the accused on the basis of the inspection dated 06.09.2006.
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5. The accused was summoned U/S 135 of the Electricity Act 2003 (to be referred as "Act" hereinafter) by my ld. predecessor vide order dated 24.08.2007 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 by my ld. predecessor on 23.10.2008 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 Sanjeev Kumar and PW 3 Sh. S.K.Gajbhiye.
PW-1 Sh. Rajeev Ranjan, deposed that the present complaint Ex.CW1/3 was filed by Sh.C.B.Sharma. He was authorized vide letter of authority in his favour Ex. PW-1/A. PW-2 Sh.Sanjeev Kumar deposed that on 06.09.2006 he was posted as a Trainee Engineer. On that day a team comprising of him, Sh. Shivender Kumar (AM), Naresh Kumar and Munna Lal (both lineman) alongwith photographer had conducted a raid at premises bearing Kothi no. 24, near permanent Lok Adalat, Mata Sundri Road, New Delhi at 01.30 p.m. The inspection was headed by Sh. Shivender Kumar, Assistant Manager. During the course of the inspection, accused (Sammi) was found indulging in direct theft of electricity from the electricity feeder pillar of the company. He had connected wires from his premises directly to the feeder pillar of the company in order to illegally abstract electric energy at the above mentioned premises. No meter was found at the said premises. Load Report was also prepared as per the load observed at the site, Page 3 (Arun Kumar Arya) ASJ / Special Court (Electricity)/05.03.2014 CC No.366/07 BYPL Vs. Shammi the same is already Ex.2/3. The theft of electricity qua the connected load and mode of theft was covered by videography by the Videographer who was present alongwith team at the site. The compact disc containing the videography is already Ex.CW2/1. The theft of electricity was being used for domestic purpose. Mr. S.K. Gajbhiye was called at the site telephonically and he seized single core aluminium, two core aluminum cable and sealed the case property with the seal of Manager, Enforcement vide seizure memo already Ex.CW-2/2. At the site, inspection Report (meter details) was also prepared at the site, already ExCW-2/5 which bore his signature at point A. Inspection report (already Ex. CW-2/4) was prepared at site which bore his signatures at points A. A rough sketch showing the theft being conducted by the accused was also prepared as shown in Inspection Report.
The case property i.e single core aluminium (two pieces one in red colour and other in black colour), two core aluminum cable (black in colour in one piece) was identified by the witness as Ex. P1, P2 and P3.
PW-3 Sh.S.K.Gajbhiye deposed that on 06.09.2006, he was posted as Manager Enforcement at Gandhi Market. On that day at about 01.30pm, he received a telephonic call from Sh.Shivendu Kumar (Assistant Manager) that they had detected a theft of electricity at the premises bearing kothi no.24, near pernanent Lok Adalat, Mata Sundri Road, Delhi. Thereafter he reached at the site. After that the team leader instructed the line man to remove the illegal cable for the purpose of seizing the evidence material i.e two piece of single core aluminium wire, red and black colour, two core aluminium cable one Page 4 (Arun Kumar Arya) ASJ / Special Court (Electricity)/05.03.2014 CC No.366/07 BYPL Vs. Shammi piece which was seized vide seizure memo (already Ex.CW2/2) which bore his signatures at point C. He correctly identified the case property as Ex.P1.
7. In his statement recorded U/S 313 Cr.PC, accused has denied the allegations and pleaded ignorance about the raid conducted. He submits that the premises does not belongs to him and he never occupied the premises at any point of time.
8. Sh. Parveen Yadav, Ld. Counsel for the accused 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 Sh. Sanjeev Kumar admitted he was not carrying any written authority from seniors to conduct the raid in question. He did not remember whether any other raids was conducted on the said date by them. The raid in question was conducted under the supervision of Sh. Shivendu Kumar, AM. He could not tell whether the kothi no. 24 was katra (cluster). He could not tell if any other premises having a number of kothi no. 24 in the same locality and connected to each other. He did not check / procured any documents regarding the ownership / occupant during inspection. The accused was present at site and himself told him that the house belongs to him. The videography of accused also captured in the videography. The person present in the videography had himself told that he is Sammi and owner of the premises. He did not verify the identity of accused or inquired about his identity from any other person. However when the CD was played in the laptop and shown to the witness, the accused does not show in the videography.
Page 5 (Arun Kumar Arya) ASJ / Special Court (Electricity)/05.03.2014 CC No.366/07 BYPL Vs. Shammi No hindrance was created by any person at the time of raid. The reports were not pasted at site as the persons present at site did not allow to paste the same which could strange that 7-8 persons of CISF accompanied them during raid. No official was shown in vdeography while preparing reports. No inquiry about the fact where the Md.Sammi was residing was made. No public person was joined as a witness during the raid. Sh.S.K.Gajbhiye was also not shown in videography while removing the material. Pw-3 admitted that he was not the member of raiding team. It was contended that company had failed to prove its case so, accused is entitled to be acquitted in this case.
9. Per contra, Counsel for company has argued that on 06.09.2006 accused was found using the electricity of the company being distributed / transmitted through the main line. The accused had connected wire directly to the feeder pillar of the company in order to illegally abstract and use the electric energy at the said premises. There was no meter at site and the entire connected load of 6.738 KW/DX was running directly by illegally connected with the main line of the company which was being used for domestic purpose. The videography of the direct theft was taken by the M/s. Arora Photo Studio. The illegal wires i.e two pieces of single core aluminium wire and one piece of two core aluminum cable were seized by Sh.S.K.Gajbhiye (Manager) which was used for direct theft of electricity. The accused was present during the inspection.
After preparation of the inspection reports, same were offered to the accused but he neither accepted nor allowed the team Page 6 (Arun Kumar Arya) ASJ / Special Court (Electricity)/05.03.2014 CC No.366/07 BYPL Vs. Shammi member to paste the inspection reports at the premises. The accused was booked for offence of direct theft of electricity. As per depositions of the company's witnesses, the company has proved its case against the accused beyond reasonable doubt. Accordingly, accused is liable to be convicted in this case.
10. I have gone through the ocular / documentary evidence adduced on record and arguments advanced at bar by counsel for parties.
11. Company failed to file on record the identity proof of the accused. No independent witness was examined to prove the occupancy of premises by accused. The videography did not show any photograph showing the presence of accused at site. This type of evidence tendered by witnesses is purely "Hearsay Evidence" and has no evidentary value. Company has not examined that person who disclosed the name of the accused. Reference is placed on judgment of Hon'ble High Court of Delhi in Crl. L.P No. 598/2013 titled as BYPL Vs. Guddu dated 21.01.2014.
12. Sh. S.K.Gajbhiye, who was the authorized officer and in whose presence the illegal material was seized did not sign the documents except the seizure memo As per Regulation 25
(vii) Delhi Electricity Regulatory Commission (Performance Standards Metering and Billing) Regulation, 2002, the inspection report must be signed by each member of the joint team. The non signing of the inspection report by the other members of raiding team i.e Naresh Kumar and Munna Lal (both lineman) casts doubt on the report itself.
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13. This inspection was carried out in the year 2006, the company was under obligation to carry a written authority signed by designated officer of the licensee as per Regulations 25
(i) of the Delhi Electricity Regulatory Commission (Performance Standards - Metering and Billing ) Regulations, 2002, which they failed to do and no such authority was placed on record either.
14. As per Section 135 sub clause (3) & (4) of the Electricity Act, 2003, the occupant of the place of search or any person on his behalf shall remain present during the search and list of all articles seized in search shall be prepared and delivered to such occupant or person who shall sign the list. No independent person / witness was joined at the time of seizure of case property which was incumbent on their part to prove their case. Thus the company failed to comply Section 135 (3) & (4) of Electricity Act in respect to search and seizure of case property in the present case. Reliance is placed on 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.
Inspection report is silent on the aspect as to which member of inspecting team prepared the siteplan. The company was under obligation to prove this site plan which they failed to do so.
15. 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.
Page 8 (Arun Kumar Arya) ASJ / Special Court (Electricity)/05.03.2014 CC No.366/07 BYPL Vs. Shammi CW-2/1) 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.
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-1/3 remains unproved on record.
16. The inspection was carried out on 06.09.2006 and company has filed the case in the court on 20.07.2007 after a period of 11 months which remains unexplained on their part. The company could have filed complaint against the accused with the police to elucidate the entire facts of the case which the police could have done in more meaningful manner.
As per complaint, two pieces of single core aluminium wire and one piece of two core aluminum cable were seized by Page 9 (Arun Kumar Arya) ASJ / Special Court (Electricity)/05.03.2014 CC No.366/07 BYPL Vs. Shammi Sh.S.K.Gajbhiye, however as per deposition of witnesses both Pw-2 and PW-3 single core aluminium (two pieces one in red colour and other in black colour), two core aluminum cable (black in colour in one piece) were seized. The complaint remain silent about the colour of wire which they seized and there is variation in the statement of both the witnesses about the seizure of case property.
Sh. Shivendu Kumar (Asstt. Manager) who was member of the raiding team and signed the entire reports was not examined by the company. As per complaint and deposition of PW-2, PW-3 Sh.Naresh Kumar and Munna Lal ( both lineman ) were also the member of inspection team but they neither signed on any of the reports nor examined by the company.
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.
17. Although conviction can be based on the testimony of a single witness which seems trustworthy and reliable. In the present case, the testimony of PW-2 and PW-3 has material contradictions. It is relevant to note that in all the witness failed to prove that accused was the user of the electricity by positive Page 10 (Arun Kumar Arya) ASJ / Special Court (Electricity)/05.03.2014 CC No.366/07 BYPL Vs. Shammi evidence. Thus company failed to discharge its initial burden to prove beyond reasonable doubt that accused was in possession / user of the inspected premises. Reliance is placed on the judgment of own Hon'ble High Court in in CRL.A. 438/2012 & Crl. M. B. 754/2012 titled as Manoj Kumar Vs. BSES Rajdhani Power Ltd. dated 14.05.2013. The company failed to adhere the statutory regulations by the members of the inspecting team while booking a case of theft as already discussed, so it creates serious doubt on the inspection report itself.
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 30.03.2007 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/05.03.2014 Page 11 (Arun Kumar Arya) ASJ / Special Court (Electricity)/05.03.2014 CC No.366/07 BYPL Vs. Shammi 05.03.2014 Present : Sh.Mukesh Sharma, Authorized representative for the complainant company.
Sh. Parveen Yadav,Adv. for accused along with accused on bail.
Vide separate judgment announced today, accused is acquitted of the charges punishable U/S 135 & 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 be released by the complainant company after expiry of period of appeal.
However, in terms of Section-437 (A) Cr.P.C., accused is 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.
(Arun Kumar Arya) ASJ/Special Court (Elect.) Announced in open court Tis Hazari/Delhi/05.03.2014 Page 12 (Arun Kumar Arya) ASJ / Special Court (Electricity)/05.03.2014