Delhi District Court
Bypl vs . Amit & Ors. on 10 November, 2014
CC No.182/09
BYPL Vs. Amit & Ors.
IN THE COURT OF SHRI ARUN KUMAR ARYA,
ADDITIONAL SESSIONS JUDGE, SPECIAL COURT
(ELECTRICITY), TIS HAZARI COURT, DELHI
CC No. 182/09
Unique case ID No.02401R0324802009
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. Amit (User)
2. Md. Aslam (User)
R/o. 799, 4th floor,
Bartan Market, Sadar Bazar,Delhi ................ Accused
Through: Sh.Kshitiz Mahipal, Adv. for accused no.1 (Amit)
:Sh.Parveen Yadav, Adv. for accused no.2 (Aslam)
Date of Institution : 13.04.2009
Judgment reserved on : 01.11.2014
Date of Judgment : 10.11.2014
Final Order : Acquittal
JUDGMENT
1. As per complaint, on 13.01.2009 at 17-19 Hrs. a team comprising of Sh.V.S.Nigam, Sh.S.C.Rathi, Sh.J.D. Sharma (all Sr. Manager), Sh.Naresh Chand (Manager), Sh. Poonam Dass and Sh. Ajay Kumar Aggarwal (both Engg.) had conducted a raid at premises no. 799, 4th floor, Bartan Market, Sadar Bazar, Delhi. At the Page 1 CC No.182/09 BYPL Vs. Amit & Ors.
time of inspection, accused no.1 Amit and accused no.2 Aslam were the users of electricity at inspected premises and were found indulging in direct theft of electricity through illegal wire tapping from running BSES service line. Visual recording showing the irregularities was conducted by member of raiding team. The total connected load which was illegally used by the accused for commercial purpose was assessed by the inspection team as 4.140 KW/NX/DT. The illegal material i.e AL PVC single core 10mm sqr. Qty.2 1.30 x 2 = 2.60 mtr., black colour (common evidence of IRN No. 1981 and 1982) was seized from the spot by Sh.V.S.Nigam (Asstt.Manager). The inspection reports were neither signed nor allowed to be pasted on the premises in question. The accused persons were booked for the offence of direct theft of electricity.
2. Subsequently, theft assessment bill in the sum of Rs.1,57,144/- was raised against the accused persons. 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. 799, 4th floor, Bartan Market, Sadar Bazar, Delhi where the offence has been allegedly committed by the accused persons.
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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 14.07.2009 after 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 vide order dated 05.05.2011 to which they pleaded not guilty and claimed trial.
5. Complainant in support of its case examined three witnesses PW-1 Sh.J.D.Sharma (Sr.Manager), PW-2 Sh.S.C. Rathi (DGM) and Pw-3 Rajeev Ranjan (Authorized representative).
PW-1 J.D. Sharma, Sr. Manager deposed that on 13.01.2009, he was posted as Sr. Manager at Division Pahar Ganj and at the instruction of DGM, Sh.V.S.Nigam he constituted a raiding party comprising of him, Sh.V.S.Nigam, SC Rathi (Sr. Manager), Naresh Chand (Manager), Poonam Dass and Ajay Kumar Aggarwal (Both Engineer) and reached at premises bearing no. 799, 4th floor, Burtan Market, Sadar Bazar, Delhi. There they found that accused persons were found indulging in direct theft of electricity by tapping illegal wire from BSES Service line for commercial purpose (i.e some pasting work) and connected load was found as 4.140 KW.
Sh. Ajay Aggarwal prepared the inspection report (Ex.CW2/A), the inspection report (meter detail report) Ex.PW-1/A was prepared by him. The connected load report (Ex.CW-2/B) was prepared by Sh.Naresh Chand and all reports bore his signatures at point A. Thereafter, they removed the illegal tapping wire i.e 10mm sq. single core PVC wire of black colour into two pieces length approximately 1.3 mtr. each piece sealed in gunny bag with the seal of Manager O&M and seized the same vide seizure memo Ex.CW2/C Page 3 CC No.182/09 BYPL Vs. Amit & Ors.
which bore his signatures at point A. They took photographs (Ex.CW2/D) of connected load and irregularities collectively and the CD containing the said photographs is Ex.CW2/E. He identified the case property as Ex.P1. PW-2 Sh.S.C.Rathi, DGM, also deposed on the lines of aforesaid statement.
PW-3 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.
6. In statement recorded u/s 313 Cr.PC, accused persons had denied the allegation and stated that they have been falsely implicated in the present case and no raid was conducted at their premises.
7. Sh. Kshitiz Mahipal, for the accused no.1 (Amit) and Sh. Parveen Yadav, Adv. for the accused no.2 (Aslam) had argued that accused are falsely implicated in this case and company failed to bring any incriminating material against them.
During cross examination, PW-2 admitted that there were other meters installed at the said premises however he could not tell there numbers. No meter was installed for the premises in question. At the time of inspection one lady was present at site who disclosed the name of user of premises in question as accused persons, however, she did not disclose her name. They did not seize any document which shows that accused persons are users of the premises in question. Neither the accused persons nor number of premises in question are shown in the photographs. They could not tell the name of registered consumer in respect to meter shown in the Page 4 CC No.182/09 BYPL Vs. Amit & Ors.
photograph. The meter shown in photograph Mark X was not removed at site as it belongs to some other consumer. The preparation of seizure memo was not shown in any of the photograph. They did not paste the reports at site nor tried to make the public witness from the neighborhood premises.
The service line from which illegal tapping was tapped by accused persons, was connected with a meter, however witnesses could not tell the name of the RC or the meter no. in which alleged service line was connected and shown in photograph. The illegal tapping was tapped by the accused persons in a jumper (Bunch) of wires shown in photograph at mark X but in the said photograph the said illegal wire separate tapping point was not shown clearly due to jumper (Bunch) in vernacular.
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 of 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 persons in the inspected premise. It was contended that company had failed to prove its case so, accused persons are entitled to be acquitted in this case.
8. Per contra, counsel for company has argued that during inspection, accused persons were found indulging in direct theft of electricity through illegal wire tapping from running BSES service line. The video recording showing the irregularities was taken by member of raiding team. The illegal material i.e AL PVC single core 10mm sqr. Qty.2 1.30 x 2 = 2.60 mtr., black colour (common Page 5 CC No.182/09 BYPL Vs. Amit & Ors.
evidence of IRN No. 1981 and 1982) was seized from the spot by Sh.V.S.Nigam (Asstt.Manager). The total connected load illegally used by the accused for commercial purpose was assessed by the inspecting team as 4.140 KW/NX/DT. The accused persons were booked for offence of direct theft of electricity. As per deposition of PW-1 and PW-2 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 heard arguments of counsel for both parties.
The company failed to examine Sh. V.S.Nigam (DGM), Naresh Chand (Manager), Poonam Dass and Ajay Kumar Aggarwal (both engineer) who were members of raiding team. No explanation has been assigned for 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 were 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 court as company failed to prove the occupancy of accused by positive evidence.
The inspection report (Ex.CW-2/A) states in the column name of the user as Amit and Md. Aslam ("as stated"), however, it was not specified as to who disclosed the name of accused. The complaint is silent about the fact whether accused were found at the spot or not. The inspection reports were neither signed nor allowed to paste at the premises, however, the reason for same was not Page 6 CC No.182/09 BYPL Vs. Amit & Ors.
explained. The fact of said non compliance i.e signing or pasting the inspection reports was not reported to the police. The lady who met at the spot was neither named in the complaint, inspection reports, nor in examination in chief of witnesses. It was stated by PW-2 in cross examination that there were other meters installed at the said premises however, he do not remember there numbers.
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 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.
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 Amit and Md.Aslam who were the user 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.
12. As per judgment of Hon'ble High Court in 2012 (4) JCC 2713 titled as BSES Rajdhani Power Ltd. Vs. Sunheri & Page 7 CC No.182/09 BYPL Vs. Amit & Ors.
Ors. the company was under obligation to examine the member of raiding team who took photographs or recorded the videography.
The Compact disc (Ex.CW-2/E) 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 13.04.2009 after 3 months 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 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 (Sahib Singh Vs. State of Haryana AIR 1997 SC 3247).
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 Page 8 CC No.182/09 BYPL Vs. Amit & Ors.
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 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 Page 9 CC No.182/09 BYPL Vs. Amit & Ors.
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 testimonies of PW-1 and PW-2 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 inspection report. There is no material evidence on record which connect the theft with the accused.
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 are canceled and surety discharged. Amount, if any, deposited by the accused persons as a condition for bail or in Page 10 CC No.182/09 BYPL Vs. Amit & Ors.
pursuance to interim order of any court qua the theft bill raised by the company on the basis of inspection dated 13.01.2009 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/10.11.2014
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CC No.182/09
BYPL Vs. Amit & Ors.
10.11.2014
Present: Sh. Jitender Shankar, Authorized Representative for the
complainant company.
Sh. KshitizMahipal, Adv. for accused for accused no.1 (Amit) Sh. Parveen Yadav, Adv. for accused for accused no.2 (Md. Aslam) Vide separate judgment announced today, both the accused persons 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 both 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/10.11.2014
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