Delhi District Court
Bypl vs . Fakeer Chand on 1 May, 2014
CC No: 877/07
Police Station: Pahar Ganj
BYPL Vs. Fakeer Chand
IN THE COURT OF SHRI ARUN KUMAR ARYA,
ADDITIONAL SESSIONS JUDGE, SPECIAL COURT
(ELECTRICITY), TIS HAZARI COURT, DELHI
CC No: 877/07
Unique case ID No.02402R0854752008
BSES Yamuna Power Ltd.
Having its Registered office at
Shakti Kiran Building,
Karkardooma, Delhi110032
(Through its authorized representative
Sh. C. B. Sharma) ............ Complainant
Vs.
Fakeer Chand
10927, Gali Pipal Walli,
Motia Khan, Pahar Ganj,
New Delhi ................ Accused
Date of Institution ........... 22.10.2007
Judgment reserved on .......... 28.04.2014
Date of Judgment ........... 01.05.2014
Final Order ............ Acquitted
JUDGMENT
1. The case of the company, in brief, is that on 01.12.2006 at about 12:30 PM, as per reference given by Manager (Enforcement), an inspection was carried out by Sh. O. P. Rajput (AM), Sh. Vinay Kumar Gupta (JET), Sh. Chandermani (GET), Sh. Ravinder Page 1 of 16 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi /01.05.2014 CC No: 877/07 Police Station: Pahar Ganj BYPL Vs. Fakeer Chand (Lineman) and Sh. Dinesh (Elec.) at the premises of the accused bearing no. 10927, Gali Pipal Walli, Motia Khan, Pahar Ganj,New Delhi (hereinafter referred to as "subject premises") .
2. During the inspection, team found that accused was the user of the electricity in the subject premises by bye passing the meter and making shunt at meter terminal block. The supply was being used at the ground floor and first floor. The theft was being committed for domestic purpose at ground and first floor and used the load of 4.413 KW. That the necessary videography was conducted by Sh. Sunil (From M/s Arora Photo Studio).
3. During the course of inspection, existing single phase meter was removed in the presence of Manager Enforcement, who was called at site. He seized the removed material i.e. one Electromechanical meter no. E4063202, reading 9836 at site. The accused was illegally, unauthorizedly and dishonestly using the electricity for the commercial purpose. An assessment theft bill of Rs. 1,20,955/ was raised against the accused for theft of electricity.
4. The complainant company (to be referred as "company" hereinafter) i.e. BSES Yamuna Power Ltd has filed the present complaint case under section 135/138 read with section 151 of the Electricity Act, 2003 (hereinafter referred to as "Act) against Page 2 of 16 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi /01.05.2014 CC No: 877/07 Police Station: Pahar Ganj BYPL Vs. Fakeer Chand the accused praying that accused be summoned, tried and punished as per law with a further prayer to determine the civil liability of the accused as per provisions of Section 154 (5) of the Act.
5. After recording the pre summoning evidence of company, the accused was summoned for the offence U/S 135 of the Electricity Act 2003 by my ld. predecessor vide order dated 07.11.2007. 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 11.09.2008 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 Sh. O. P. Rajput, PW - 3 Sh. Preetam Singh. Accused examined DW 1 Sh. Pawan Kuumar in his defence.
PW - 1 Sh. Rajeev Ranjan deposed that the present complaint Ex.CW1/B was filed by Sh. C. B. Sharma. He was authorized vide letter of authority in his favour Ex. PW1/A. PW - 2 Sh. O. P. Rajput, deposed that on 01.12.2006, at about 12:30, he along with Sh. C. M. Sharma (Engineer), Sh. Vinay Gupta (Engineer), Sh. Ravinder (Lineman) and Sh. Dinesh (Lineman), police officials from the local police and CISF conducted a raid on the instruction of Sh. Preetam Singh (Manager) at the premises of the Page 3 of 16 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi /01.05.2014 CC No: 877/07 Police Station: Pahar Ganj BYPL Vs. Fakeer Chand accused bearing no. 10927, Gali Pipal Walli, Gate Motia Khan, Pahar Ganj.
At the time of inspection, accused was found indulging in direct theft of electricity by bye passing the meter and shunt at the meter terminal i.e. joining the incoming to outgoing. The connected load to the tune of 4.413 KW was used for domestic purpose.
The inspection report (Ex. CW2/A), load report (Ex. CW 2/B), meter details report (Ex. CW 2/D) bore his signatures at point X. Rough sketch was also bore his signature at point X and at the premises in question at point Y. A single phase electro mechanical meter was removed from the site in the presence of Sh. Preetam Singh, vide a seizure memo (Ex. CW 2/C) bore his signatures at point X. Necessary videography (Ex. CW 2/D) was taken by videographer Sunil at site. Accused neither accepted nor allowed the team member to paste the inspection report at the subject premises.
PW - 3 Sh. Preetam Singh, deposed that on 01.12.2006 at about 12:30 PM, he received a telephonic call from Sh. O. P. Rajput. He reached the premises in question and seized the case property, vide a seizure memo (Ex. CW 2/C) bore his signatures at point Z. DW - 1 Sh. Pawan Kumar, deposed that he is son of accused Page 4 of 16 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi /01.05.2014 CC No: 877/07 Police Station: Pahar Ganj BYPL Vs. Fakeer Chand Fakir Chand. One electricity meter was installed in the name of his father i.e. accused Fakir Chand. He filed the driving licence (Ex. DW 1/A), Electricity bills (Ex. DW 1/B), Consumer's details (Ex. DW 1/C) and copy of consumer details of meter no. 4063202 (Ex. DW 1/D). As per details of meter no. 4063202 the address of the consumer is 10928, GF, Gali Peepal Wali, Motiya khan and he has no concern with this address i.e. 10928, GF, Gali Peepal Wali, Motiya Khan. No raid was conducted at my premises i.e. 10927, gali Peepal wali, Motiya Khan, Delhi.
7. Statement of accused U/S 313 Cr.P.C. was recorded in which he denied the allegations against him and stated that he was falsely implicated in this case. No raid was conducted at his premises.
8. Sh. Parveen Yadav, Adv. for the accused has made the submission that no inspection was carried out at the subject premises as alleged, no documents like inspection report, load report, seizure memo etc. were prepared at the spot. Accused has been falsely implicated the present case by the officials of the company.
During cross examination of PW 1 Sh. Rajeev Ranjan admitted on a particular question that meter bearing no. E4063202 is forged one.
PW 2 Sh. O. P. Rajput, admitted no written application in Page 5 of 16 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi /01.05.2014 CC No: 877/07 Police Station: Pahar Ganj BYPL Vs. Fakeer Chand the local police station was given by him regarding the assistance to conduct the raid. Sh. Preetam Singh PW 3 associated with him from the beginning of the inspection. He did not remember whether the accused has been shown in videography. He had not inquired about the registered consumer of the electricity meter which has been mentioned in the present case at the time of raid and thereafter. No resistance was created during raid. They were not allowed to paste the inspection reports by the accused.
He cannot say whether the meter in question was fake or genuine. After seeing the videography in the court he admitted that the accused is not shown in the videography. Preparation of the reports are also not shown in the videography. Public persons not signed on the documents as a witness.
On a specific question, he admitted that name of registered consumer of the meter number mentioned in the inspection report not verified as the meter was very old. Same were also not verified by the Enforcement - II department at the time of verification of the case.
PW 3 Sh. Preetam Singh, admitted that he was not the member of the raiding team. His work is only to seize the case property.
Page 6 of 16 (Arun Kumar Arya)
ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi /01.05.2014 CC No: 877/07 Police Station: Pahar Ganj BYPL Vs. Fakeer Chand Sh. Parveen Yadav, ld. counsel for accused argued that theft was committing by bye passing the meter bearing no. E4063202 which was in the name of one Shri Ram and he proved his bill in the examination in chief of DW 1. He also proved the Consumer record of abovesaid meter (Ex. DW 1/D) for the year 2006 to year 2008.
Accused is using the electricity through meter number 4134836 which was installed in his premises bearing no. 10927, GF, Gali Peepal Wali, Motia Khan. Accused is paying the regular consumptions bills (Ex. DW 1/B) of meter no. 4134836.
He further submitted during the course of arguments that the said mass raid was conducted with the CISF and local Delhi police. He did not make any public witness / police officials in the said inspection as a witness. Team did not have any written authority to inspect the premises. The company failed to prove the videography filed on record as same were taken by Sh. Sunil who was not examined by the company.
Counsel for accused urged that accused was identified in the examination - in - chief of PW 1 but during cross he denied that accused was not shown in the videography.
PW 2 deposed that no resistance was created at site, it appears surprising as to why they were not allowed to paste the Page 7 of 16 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi /01.05.2014 CC No: 877/07 Police Station: Pahar Ganj BYPL Vs. Fakeer Chand documents at site in the presence of police officials.
Ld. counsel for accused argued that inspection team did not have any written authority to conduct the raid. He also argued that company failed to prove the photographs and CD filed on record and accused was not shown in any of the photographs. No signature of any public witness was obtained on the inspection reports. There was no evidence on record which connect the theft with the accused or his premises. No independent person was joined at the time inspection. The procedure for seizing the illegal material was not photographed / videographed.
Sh. Vinay Kumar Gupta, Sh. Chandermani, Sh. Ravinder and Sh. Dinesh, who were member of the raiding team were not examined by the company. They did not collect any proof of occupation of the premises in question. It was contended that company had failed to prove its case so, accused is entitled to be acquitted in this case.
The submissions made on behalf of company were that the accused was found indulging in direct theft of electricity electricity by bye passing the meter and making shunt at meter terminal block. The supply was being used at the ground floor and first floor. The theft was being committed for domestic purpose at ground and first Page 8 of 16 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi /01.05.2014 CC No: 877/07 Police Station: Pahar Ganj BYPL Vs. Fakeer Chand floor and used the load of 4.413 KW. The entire documents i.e. inspection report, load report, seizure memo prepared by the team of the company at the spot as per rules.
The accused was booked for offence of direct theft of electricity. As per deposition of witnesses, 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 perused the documents filed on record by the company and gone through the rival submissions made by parties.
As per complaint para no. 5 it is mentioned that team consisting of Sh. O. P. Rajput (AM), Sh. Vinay Kumar Gupta (JET), Sh. Chandermani (GET), Sh. Ravinder (Lineman) and Sh. Dinesh (Elec.) and in para no. 6, it is mentioned that necessary visual recording was taken by one Sh. Sunil. Company failed to explain the fact that Sunil was with the team and videographed the inspection.
It is mentioned in para 6 of the complaint that direct supply was being used for the domestic purpose at ground and first floor and in the end of this para is again mentioned that accused illegally, unauthorizedly and dishonestly using the electricity for the commercial purpose. This contradiction is not clarified by any of the witness examined in court.
Page 9 of 16 (Arun Kumar Arya)
ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi /01.05.2014 CC No: 877/07 Police Station: Pahar Ganj BYPL Vs. Fakeer Chand The complaint is silent on the aspect as who was the Manager Enforcement on whose instructions the inspection was carried out. It is also silent whether CISF and police officials accompanied the inspecting team however, PW 2 improved his version while testifying before this court stating the instruction was given by him to Sh. Preetam Singh and local police and CISF were accompanied the team at the time of raid.
The contents of inspection report looks doubtful as alleged theft was committed by bye passing the meter bearing no. E 4063202 which was in the name of one Shri Ram. Consumer details of abovesaid meter for the year 2006 to 2008 are proved in the deposition of DW 1. The accused is the resident of 10927, GF, Gali Peepal Wali, Motia Khan and is found to be using the electricity meter bearing number 4134836 and those bills are also proved on record. Videography conducted at site although not proved in accordance with Evidence Act, even failed to show in whose premises the raid was conducted.
PW 2 stated during examination in chief the name of one Sh. C. M. Sharma is not mentioned in the complaint or in the list of witnesses however it first time appeared in the testimony of PW 2 before the court.
Page 10 of 16 (Arun Kumar Arya)
ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi /01.05.2014 CC No: 877/07 Police Station: Pahar Ganj BYPL Vs. Fakeer Chand In the complaint designation of Sh. Vinay Kumar Gupta as (Engineer) and Sh. Dinesh as (Elec) but as per deposition of PW 2 designation of Vinay Gupta as (Engineer) and Sh. Dinesh as (Lineman).
PW 2 deposed that Sh. Preetam Singh PW 3 was with them in the raid whereas in the complaint it is clearly mentioned that he was called at site to seize the material.
PW 2 identified the accused in the court and deposed that he offered the reports to the accused but he did not allow the team to paste the same or received the same. He also admitted during cross examination after seeing the videography that accused was not shown in the videography.
These type of material contradictions on the part of company creates doubt and weakens the case of the company.
During examination - in - chief of PW 2, he inspected the site along with 4 other officials of the company, however, except him, none deposed in the court to prove the factum of inspection.
Sh. O. P. Rajput, Sh. Chandermani, Sh. Ravinder and Sh. Dinesh who were the member of the raiding team did not sign the documents. Sh. C. M. Sharma whose name was not mentioned in the complaint or in the list of witnesses but his name was disclosed by Page 11 of 16 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi /01.05.2014 CC No: 877/07 Police Station: Pahar Ganj BYPL Vs. Fakeer Chand PW 2. 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 casts doubt on the report itself.
This inspection was carried out in the year 2007, 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.
The company failed to comply Section 135 (3) & (4) of Electricity Act in respect to search and seized of case property. 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 things 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 the seizure of the property. Reliance is placed on the judgment of Hon'ble High Court of Delhi in CRL.A. 438/2012 & Crl. Page 12 of 16 (Arun Kumar Arya)
ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi /01.05.2014 CC No: 877/07 Police Station: Pahar Ganj BYPL Vs. Fakeer Chand M. B. 754/2012 titled as Manoj Kumar Vs. BSES Rajdhani Power Ltd. dated 14.05.2013.
The most important question in this case is whether company has been able to prove beyond reasonable doubt that accused was the consumer of electricity at the time of alleged inspection. It is on record that the company did not procure the document pertaining to occupancy or the ownership of the inspected premises. No independent witness was examined to prove the occupancy of premises by accused otherwise.
The inspection report (Ex. CW 2/A) states in the coloum Name of the user as Sh. Fakeer Chand ("as stated") it does not specify as to who told them the name of the accused whether it was accused or somebody else. No inquiry in this respect was conducted by the company before the filing of the complaint.
Videographer Sh. Sunil was not examined by the company, as per 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 videographer in the court was held to be fatal to the case of the company. 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. Page 13 of 16 (Arun Kumar Arya)
ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi /01.05.2014 CC No: 877/07 Police Station: Pahar Ganj BYPL Vs. Fakeer Chand 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/B remains unproved on record.
PW 3 also admitted that he was not the member of the raiding team he simply went to subject premises to seize the case illegal material, so, the entire case of the company hinges on the evidence of PW 2 only.
The inspection was carried out on 01.12.2006 and company has filed the case in the court on 22.10.2007 after a period Page 14 of 16 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi /01.05.2014 CC No: 877/07 Police Station: Pahar Ganj BYPL Vs. Fakeer Chand of 10 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 and particularly in a case where the alleged hindrance was caused by the public persons when the team try to paste the documents at the site. In this case police officials were with the team but no steps were taken by them.
10. 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.
The alleged theft was being carried out by making a shunt by bye passing the meter but the wires through which the shunt was created could have been recovered in the same manner and proved in the court even this was not done.
11. There is only 1 material witness in this case on whose Page 15 of 16 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi /01.05.2014 CC No: 877/07 Police Station: Pahar Ganj BYPL Vs. Fakeer Chand testimony the entire case of the company is based. His testimony does not inspire confidence as has already been discussed in the foregoing paras. 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 our own High Court in Manoj Kumar (supra) case. 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.
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 01.12.2006 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/01.05.2014
Page 16 of 16 (Arun Kumar Arya)
ASJ / Special Court (Electricity)
Tis Hazari Courts, Delhi /01.05.2014