Delhi District Court
Through : Sh. Jitender Shankar vs . on 13 March, 2015
IN THE COURT OF SHRI ARUN KUMAR ARYA,
ADDITIONAL SESSIONS JUDGE, SPECIAL COURT
(ELECTRICITY), TIS HAZARI COURT, DELHI
CC No. 198/09
Unique case ID No.02401R0465742009
BSES Yamuna Power Ltd.
Having its Registered office at
Shakti Kiran Building,
Karkardooma, Delhi110032
(Through its authorized representative
Sh. C. B. Sharma) ............ Complainant
Through : Sh. Jitender Shankar, AR with Ld. Counsel
Sh. Nilesh Kumar, Adv. for the company.
Vs.
Qayamuddin
House No: 2144, First Floor,
Ahata Meer Bukhani,
Near Turkman Gate (Pole No: DRG - a 780)
Delhi ................ Accused
Through: Sh. Parveen Yadav, Ld. counsel for the accused.
Date of Institution : 23.04.2009
Judgment reserved on : 05.03.2015
Date of Judgment : 13.03.2015
Final Order : Acquitted
CC No: 198/09
Police Station: Chandni Mahal
BYPL Vs. Qayamuddin 1
JUDGMENT
1. Briefly, on 03.02.2009 at 12:50 PM, as per the direction of higher officials of the complainant company, a mass raid was conducted by the authorized officers i.e. Sh. K. L. Kain (Senior Manager), Sh. Jitender Raghav (DET), Sh. Surender Kumar and Sh. Krishna Kumar (both lineman) along with police personnel from Chandni Mahal at the premises bearing house no. 2144, First Floor, Ahata Meer Bukhani, Near Turkman Gate (Pole No. DRG - a
780) Delhi (to be referred as "Premises" hereinafter). At the time of inspection, accused was found indulging in direct theft of electricity by tapping the common service cable of the complainant company. No meter and diesel generator were found at site. The accused was illegally, unauthorisedly and dishonestly using the electricity for the domestic purpose to the tune of 9.466 KW.
The inspection team had removed and seized the material which was used for the purpose of illegal drawing / taping i.e. two single core PVC and copper wires 2X10MM SQ. 7 meters in length of black and yellow colour. During the course of inspection, videography qua the theft of electricity and some part of the connected load was taken by Sh. Parvesh of the M/S Arora Photo Studio. Entire CC No: 198/09 Police Station: Chandni Mahal BYPL Vs. Qayamuddin 2 connected load could not be photographed due to the resistance / hindrance created by the occupants and pardhansian system. The occupants of the inspected premises neither accepted nor allowed the raiding team to paste the inspection report / load report as well as seizure memo at the wall of the premises. The accused was booked for the offence of direct theft of electricity. Subsequently, theft assessment bill for sum of Rs. 1,19,066/ was raised against the accused. On the failure of accused to deposit the same, present complaint was filed against them.
2. The present complaint was filed by Sh. C. B. Sharma, Authorized Officer of company. 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, Delhi110032 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 where the offence has been allegedly committed by the accused.
3. The accused was summoned U/S 135 of the Electricity Act 2003 by my ld. predecessor vide order dated 21.07.2009 after presummoning evidence. Notice U/S 251 Cr.P.C of offence punishable U/S 135 and 151 of Electricity Act, 2003 was CC No: 198/09 Police Station: Chandni Mahal BYPL Vs. Qayamuddin 3 framed against the accused by my ld. predecessor vide order dated 21.05.2011 to which he pleaded not guilty and claimed trial.
4. Complainant in support of its case examined 2 witnesses i.e PW - 1 Sh. K. L. Kain (Senior Manager) and PW - 2 Sh. Rajeev Ranjan (Authorized Representative).
PW - 1 Sh. K. L. Kain, On 03.02.2009 mass raid was conducted in the area of Turkuman Gate. The raiding party was consisted of himself, Sh. Jitender Raghav (Trainee Engineer), Sh. Krishan Kumar (Line Man), Sh. Surender Kumar (Lineman) and Sh. Parvesh (Videographer from M/s Arora Photo Studio). The raid was conducted at about 12:50 at the premises bearing no. 2144, Ahata Mir Khan, Turkuman Gate, Darya Ganj along with CISF Delhi Police. Accused Qayamuddin was found present using the electricity through a illegal wire from common service cable of BSES Yamuna Power Ltd. No meter was found at site. Accused using the electricity for domestic purpose to the tune of 9.466 KW. Entire reports. i.e. inspection report (Ex. PW 1/A), meter details report (Ex.CW 2/A), load report (Ex. CW 2/B) bores his signature at point A. The consumer i.e. accused Qayamuddin refused to sign on the documents prepared by the raiding team. Sh. Parvesh took the videography at site (Ex. CW 2/D). Witness identified the case property as Ex. P1. CC No: 198/09 Police Station: Chandni Mahal BYPL Vs. Qayamuddin 4 PW - 2 Sh. Rajeev Ranjan deposed that the present complaint Ex. CW1/A was filed by Sh. C. B. Sharma. He was authorized vide letter of authority in his favour Ex. CW1/B.
5. In statement recorded U/S 313 Cr.PC, accused had denied the allegation and stated that he has been falsely implicated in the present case and no raid was conducted at his premises. No officers of the company ever visited his premises for conducting the raid.
6. Sh. Parveen Yadav, Adv. for the accused had argued that accused was falsely implicated in this case and company failed to bring any incriminating material against him.
No public person was made as a witness. 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 evidence on record which connect the theft with the accused.
CC No: 198/09 Police Station: Chandni Mahal BYPL Vs. Qayamuddin 5 PW - 1 Sh. K. L. Kain, admitted that he did not remember the area of the premises. Written application for assistance of police regarding mass raid was given but same was not file on record. They did not have any written instructions regarding the conducting of raid. He did not remember the pole number from where the electricity was abstracted by the building / flats. The person present at site did not disclose his identity at site. He could not the relation between the accused and the persons present at site. Accused was not captured in the videography.
Company has not examine Sh. Jitender Raghav, Sh. Krishan Kumar, Sh. Surender Kumar and Sh. Parvesh in the court. Police personnel were with the team were also not examined. In the complaint and in the pre - summoning evidence, case property two single core PVC and copper wires 2X10 Mmsq of 7 mtrs in length of black and yellow colour removed and seized, however, at the time of opening of the case property in the court only yellow colour wire was seized. It was contended that company had failed to prove its case so, accused is entitled to be acquitted in this case.
7. Per contra, counsel for company has argued that during inspection, no meter and diesel generator were found at site and accused using the electricity from the common service cable CC No: 198/09 Police Station: Chandni Mahal BYPL Vs. Qayamuddin 6 of the company. Accused used the electricity for domestic purpose to the tune of 9.466 KW. Inspection team had removed and seized the material which was used for the purpose of illegal drawing / tapping. Necessary videography qua the theft of electricity and some part of the connected had taken by Sh. Parvesh of the M/S Arora Photo Studio. Entire connected load could not completed due to the resistance / hindrance created by the occupants and pardhansian system. The accused was booked for offence of direct theft of electricity. As per deposition of PW - 1, the company has proved its case against the accused beyond reasonable doubt, accordingly, accused is liable to be convicted in this case.
8. I have gone through the evidence adduced on record and considered the arguments of counsel for both parties.
As per complaint and pre - summoning evidence black and yellow colour wire were removed and seized, however, at the time of examination - in - chief of PW - 1 only yellow colour wire was taken when case property was opened in the court.
It is mentioned in the complaint that entire load could not be taken out due to hindrance created at site, it is very surprising when accused / occupants were allowed the team to seize the illegal CC No: 198/09 Police Station: Chandni Mahal BYPL Vs. Qayamuddin 7 material or allowed to take half of the connected load or when they were with the police then how a normal person could resist the team to take entire load from the site.
Sh. Parvesh who is the videographer at the time of inspection not examined in the court by the company. 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 videographer 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. 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 subclause ''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 of Delhi.
The company failed to examine Sh. Jitender Raghav CC No: 198/09 Police Station: Chandni Mahal BYPL Vs. Qayamuddin 8 (DET), Sh. Surender Kumar and Sh. Krishna Kumar (both lineman) 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 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 court as company failed to prove the occupancy of accused by positive evidence.
In the inspection report (Ex. PW1/A) in column no.2.2 name of the user is Qayamuddin ("as stated"), however, it was not specified as to who disclosed the name of accused. The persons who were present in the at the time of inspection were also not examined in the court nor their names or their relations with the accused was mentioned in the reports.
9. 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 CC No: 198/09 Police Station: Chandni Mahal BYPL Vs. Qayamuddin 9 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.
10. 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 or the some other person who was 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.
PW - 1 Sh. K. L. Kain deposed in his examination - in - chief that accused Qayamuddin was present at site but he was not photographed. The Hon'ble Delhi High Court in Crl. M.C. 2296/2008 titled as BRPL & Ors. Vs. Ishwar Chand & Anr. dated 10.02.2009 has issued certain guidelines to the electricity companies videograph the CC No: 198/09 Police Station: Chandni Mahal BYPL Vs. Qayamuddin 10 sign boards of the name plates as well as the accuracy of inspected address with nearby landmark. It was also directed to videograph the person who met with the raiding team at site. An office order bearing no. BSES/RPL/HOD/001 dated 30.08.2008 already exists in this respect. Company has failed to prove adhere to abovesaid guidelines.
11. 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 23.04.2009 after about 19 days 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 (Krishnan Vs. State AIR 2003 SC 2978).
The reports prepared at site were only signed by two members i.e. Sh. Jitender Raghav and Sh. K. L. Kain, however, team also consisted of Sh. Surender Kkumar and Sh. Krishna Kumar and Sh. Parvesh, who never signed on the reports. The accused refused CC No: 198/09 Police Station: Chandni Mahal BYPL Vs. Qayamuddin 11 to receive or paste the reports at site how a person refused to receive / paste the same at the premises in the presence of police. As per Regulation 52 (ix) of Delhi Electricity Supply Code and Performance Standards Regulations 2007, as per this regulation reports must be signed by each member of the raiding team and also in case of refusal of the reports, by the consumer or his /her representative to either accept or give a receipt, copy of inspection report must be pasted a a conspicuous place in / outside the premises.
The mode of theft by the accused is at variance because as per site plan he was using the electricity from BSES LTMP box, whereas, as per inspection report, complaint, pre - summoning evidence and deposition of PW - 1 Sh. K. L. Kain, theft was being perpetrated through common service cable of BSES Yamuna Power Ltd. Common service line denotes for cable and LTMP box denotes for Low Tension Multiple Purpose box.
12. 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. CC No: 198/09 Police Station: Chandni Mahal BYPL Vs. Qayamuddin 12 No such list is either placed on record for showing as to who was the authorized officer to make this inspection.
13. 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, with the local police, thereby violating the aforesaid regulation.
14. 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 CC No: 198/09 Police Station: Chandni Mahal BYPL Vs. Qayamuddin 13 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. CW1/A remains unproved on record.
15. 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.
16. In the present case, company has not proved the case by positive evidence as the testimony of PW1 has material contradictions which are already observed in the foregoing paras. Moreover, the non adherence to the statutory regulations by the CC No: 198/09 Police Station: Chandni Mahal BYPL Vs. Qayamuddin 14 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.
17. In view of the foregoing reasons, company has failed to prove its case against the accused beyond reasonable doubt, she is accordingly acquitted. Bail bond of the accused stands canceled and surety 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 03.02.2009 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/13.03.2015
CC No: 198/09
Police Station: Chandni Mahal
BYPL Vs. Qayamuddin 15