Delhi District Court
Bypl vs . Yad Ram Etc. on 16 April, 2014
CC No: 519/08
BYPL Vs. Yad Ram etc.
IN THE COURT OF SHRI ARUN KUMAR ARYA,
ADDITIONAL SESSIONS JUDGE, SPECIAL COURT
(ELECTRICITY), TIS HAZARI COURT, DELHI
CC No. 519/08
Unique case ID No.02402R005082009
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.
1. Yadram (R/C)
S/o. Not known
R/o. H.NO. 6177, Gali Dhulia Nawab Road,
Harphool Singh Basti,
Quasab Pura, Delhi
2. Sh.Pritam Singh (Dishonest user)
S/o. Not known
R/o. H.NO. 6177, Gali Dhulia Nawab Road,
Harphool Singh Basti,
Quasab Pura, Delhi .............. Accused
Date of Institution : 19.07.2008
Judgment reserved on : 04.04.2014
Date of Judgment : 16.04.2014
Final Order : Acquittal
JUDGMENT
Briefly as per complaint, on 05.05.2008, an inspection was carried out by the officials of the complainant company comprising of Sh. D.K.Saini (AM), Sh. Sripal Singh (DET) and Sh.Arun Choudhary ( Tr. L/M ) at the premises bearing no. 6177, Gali Dhulia Page 1 (Arun Kumar Arya) ASJ / Special Court (Electricity)/16.04.2014 CC No: 519/08 BYPL Vs. Yad Ram etc. Nawab Road, Harphool Singh Basti, Qusab Pura, Delhi. The present case was filed by Sh. C.B.Sharma, Authorized Officer. Later on, Sh. Rajeev Ranjan and Sh. Mukesh Sharma were substituted as authorized representative by order of this court. At the time of inspection, accused was found indulging in direct theft of electricity by illegally tapping BSES S/L through two 3/20 SWG single core copper wire of 3.50 mtr length of red color. During inspection, no load was found on the meter no. 13881724. The user was using supply directly through illegal tapping to I/C S/C (own) at T connection iron angle by private wires which were goes to the switch board installed in the premises through window.
Necessary photographs and visual recording showing the irregularities were taken at site by the members of raiding team. The total connected load which was illegally used by the accused for domestic purpose was assessed by the inspection team as 7.513 KW/DX/DT. During inspection two 3/20 SWG single core copper wire of 3.50 meter length of red colour and one meter no. 13881724 with reading 335 was removed and taken out as material evidence and seized by the raiding team. All the inspection reports were prepared at site and were offered to the accused for signing the same but he refused to sign the same. The accused was booked for the offence of direct theft of electricity.
3. Subsequently, theft assessment bill in the sum of Rs. 1,54,567/- was raised against the accused. On the failure of the accused to deposit the same, present complaint was filed against the accused.
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4. The accused was summoned U/s 135 r/w Section 151 of the Electricity Act 2003 by my ld. predecessor vide order dated 21.08.2008 after recording the pre -summoning evidence. Accused no.2 (Yad Ram ) was expired and proceedings against him are dropped vide order dated 03.11.2008.
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 court vide order dated 13.10.2009 to which accused pleaded not guilty and claimed trial.
5. Complainant in support of its case examined two witnesses namely PW-1 Rajeev Ranjan (Authroized representative) and PW-2 Sh. D.K.Saini (Manager).
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. CW-1/A1 to act, appear and plead on behalf of the company in this case.
PW-2 Sh. D K Saini, deposed that on 05.05.2008 he was posted as Assistant Manager and as per directions of Manager Enforcement at about 1 pm they conducted an inspection at the premises bearing no.6177, Gali Dhulia, Nawab Road, Harphool Singh Basti, Kasab Pura, Delhi. The inspection team consisted of him, Sh. Shripal Singh (DET), Arun Chaudhary (Lineman). During inspection, they found that one single phase electronic meter bearing No. 13881724 installed at the premises in question. The load was not connected with the meter. The accused was found indulging in direct theft of electricity from incoming service core cable at "T" connection Page 3 (Arun Kumar Arya) ASJ / Special Court (Electricity)/16.04.2014 CC No: 519/08 BYPL Vs. Yad Ram etc. iron angle through illegal wires. The illegal wires were connected to the internal load of the inspected premises. The direct theft of electricity was being used for domestic purposes to the tune of 7.513 KW/DX. Inspection report (Ex.CW2/B), load report Ex.CW2/C and the inspection report / meter details report ( Ex.CW2/D ) were prepared at the site and same bears his signature at point X. The inspected team assessed the connected load of 7.513 KW/DX of the premises in question. Photographs Ex.CW2/G (Colly) qua the connected load and the theft of electricity were taken to the possible extent. The CD containing the photographs is Ex.CW-2/H. The materials which were being used for the purpose of theft of electricity removed and seized by him vide seizure memo Ex.CW-2/E which bears his signature at point X and signature of Sh. Shripal Singh and Arun Chaudhary at point X1 & X2.
Witness correctly identified the case property i.e one single phase meter no. 13881724, 2 nos. 3/20 SWG length 3½ m each of red colour. The carbon copy of seizure memo is Ex. P1, single phase meter is Ex. P2 and 2 nos. red colour wires are Ex. P3 (colly.).
6. In statement recorded u/s 313 Cr.PC, accused has denied the allegation and stated that he has been falsely implicated in the present case and no raid was conducted at his premises.
7. Sh. Nand Kishore, 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.
Page 4 (Arun Kumar Arya) ASJ / Special Court (Electricity)/16.04.2014 CC No: 519/08 BYPL Vs. Yad Ram etc. He submitted that during cross examination PW-2 admitted that he received the oral information from DGM (Enforcement-1) but do not remember the name of said DGM who had given instructions. Police was not informed about the raid. The house where inspection was carried out was constructed on around 50-60 sq. yrds approximately and had three floors.
There is no photograph of the accused Pritam Singh on record and he was not got identified in the examination in chief. None of the occupants of the premises were photographed. Direct theft of electricity was taking place by illegally tapping of wires through a window from the 2nd floor to the service cable which was going to the meter. He do not remember as to how far was the pole from which the service cable was coming to the premises. They have not made any member of public as a witness.
No signature of any public witness was obtained on the inspection reports. It was further submitted that there was no material evidence on record which connect the theft with the accused. No independent person was joined at the time inspection. 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 at the time of inspection, accused was found indulging in direct theft of electricity by illegally tapping BSES S/L through two 3/20 SWG single core copper wire of 3.50 mtr length of red color. During inspection no load was found on the meter no. 13881724. Two 3/20 Page 5 (Arun Kumar Arya) ASJ / Special Court (Electricity)/16.04.2014 CC No: 519/08 BYPL Vs. Yad Ram etc. SWG single core copper wire of 3.50 meter length of red colour and one meter no. 13881724 with reading 335 was removed and taken out as material evidence and seized by the raiding team. As per deposition of PW-2 who was member of the raiding team, 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.
10. It is not proved as to who prepared the siteplan and in the absence of the same, company has failed to prove the mode and manner of theft. It is alleged that electricity was being used directly by tapping the illegal wires to I/C S/C (own) at T connection iron angle by private wires.
The name of accused is given in the inspection report as the user of the electricity. In order to connect the accused with the offence reliable evidence is required to be led by the company which could show that the accused was connected with the premises in which the theft was being committed. It was not mentioned in the inspection report whether the accused was occupying the premises in the capacity of tenant or owner. However during cross examination PW-2 deposed that accused introduced himself as the owner of premises and told his name as Pritam Singh. This assertion is a clear improvement by the witness as accused was not identified by this witness in the examination in chief moreover this fact is not recorded Page 6 (Arun Kumar Arya) ASJ / Special Court (Electricity)/16.04.2014 CC No: 519/08 BYPL Vs. Yad Ram etc. in the inspection report or in the complaint that accused stated himself to be owner of the 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. This could stated that he cannot identify the accused as she was not present at the spot. The company failed to prove any record in respect of disconnected meter which was found installed in the premises at the time of inspection. The registered consumer of this meter was not cited as a witness or examined in the court to elucidate the occupancy of the premises at the time of inspection or otherwise.
11. The Compact disc (Ex.CW-2/H) 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.
12. 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 19.07.2008 after about 2 month 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. Undoubtedly, delay in lodging the complaint does not make the complainant's case improbable when such delay is properly explained. However, unexplained delay in lodging the complaint is always fatal (Sahib Singh Vs. State of Haryana AIR 1997 SC 3247.
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13. As per Regulation 52 (ix) of Delhi Electricity Supply Code and Performance Standards Regulations 2007 "the report shall be signed by the Authorized Officer and each member of the inspecting team". Infact three officers are mentioned in the complaint whereas only two members are signatory to the inspection report. The member of raiding team Sh. Arun Choudhary (Trainee lineman) had not signed on the inspection report except seizure memo. The non signing of the inspection report by the said member of raiding team on inspection report casts doubt on this report.
The company failed to examine Sh. Sripal Singh (DET) and Sh. Arun Choudhary (Trainee L/M) who were member of the raiding team and cited in the list of witnesses. No explanation has been assigned for the non examination of these witnesses. So adverse inference has to be drawn against the company. The company did not prove the ownership of property through documentary evidence.
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 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.
15. The Authorized officer who had disconnected Page 8 (Arun Kumar Arya) ASJ / Special Court (Electricity)/16.04.2014 CC No: 519/08 BYPL Vs. Yad Ram etc. 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. There is nothing on record to show who was the Authorized Officer competent to make this inspection. The notification dated 12.09.2007 ( applicable on the present inspection is also not filed on record by the company) issued by Govt. of NCT of Delhi designates the Technical officer of the level of graduate engineers and working in the post of officers and above, as 'Authorized officers' as per section 135(2)(a) of the Indian Electricity Act for the purpose of entering, inspecting, breaking open and search any place of premises in which he has reason to believe that electricity has been used unauthorizedly. The same notification designates the technical officer not below the rank of Asstt. Engineer/ Asstt. Manager as Authorized officer as per section 135 2(b) of Indian Electricity Act for the purpose of search, seizure and remove all devices used for unauthorized use of electricity.
Page 9 (Arun Kumar Arya) ASJ / Special Court (Electricity)/16.04.2014 CC No: 519/08 BYPL Vs. Yad Ram etc. A composite reading of section 135 Electricity Act and notification dated 12.09.2007 specifies that there has to be two officers for different proceedings in an inspection and this plurality shall lend credibility to the inspection. In the present case the work of inspection and seizure has been complete by one officer. Although the same is not illegal in case when a sudden information is received for theft of electricity and a raid is to be organized immediately. But when an inspection is carried out after a specific information then the team is to be formed as per the regulations provided in this respect. The present case totally hovers around the sole testimony of Pw-2 Sh.D.K.Saini.
17. First of all the complaint is not proved by its author. 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/A remains unproved on record.
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18. 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.
No signature of any public witness were obtained on the inspection report. They do not have any written authority to conduct the raid. It was also not proved by the company as to why the police help was not taken when accused did not sign the reports and also did allow the members of raiding team to paste the reports at site. There is no material evidence on record which connect the theft with the accused. No independent person was joined at the time inspection. In a criminal case, prosecution has to prove the guilt of the accused beyond reasonable doubt to secure his conviction. 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 has material contradictions which are already observed in the foregoing paras. This testimony remains uncorroborated by any independent evidence.
19. 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 Page 11 (Arun Kumar Arya) ASJ / Special Court (Electricity)/16.04.2014 CC No: 519/08 BYPL Vs. Yad Ram etc. 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 05.05.2008 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/16.04.2014 Page 12 (Arun Kumar Arya) ASJ / Special Court (Electricity)/16.04.2014 CC No: 519/08 BYPL Vs. Yad Ram etc. 16.04.2014 Present : Sh.Mukesh Sharma, Authorized representative for the complainant company.
Sh. Nand Kishore, 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 cancelled 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/16.04.2014 Page 13 (Arun Kumar Arya) ASJ / Special Court (Electricity)/16.04.2014