Delhi District Court
Bypl vs . Vimla on 23 January, 2015
CC No.88/08
BYPL Vs. Vimla
IN THE COURT OF SHRI ARUN KUMAR ARYA,
ADDITIONAL SESSIONS JUDGE, SPECIAL COURT
(ELECTRICITY), TIS HAZARI COURT, DELHI
CC No. 88/08
Unique case ID No.02402R0080442009
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.
Vimla
W/o. Sh.Shyam Lal
R/o. H.No. 6721, Qila Kadam Sarif,
Nabi Karim, Pahar Ganj,
New Delhi ................ Accused
Through: Sh.Jitender, Adv. for accused
Date of Institution : 09.01.2008
Judgment reserved on : 13.01.2015
Date of Judgment : 23.01.2015
Final Order : Acquittal
JUDGMENT
1. As per complaint, on 30.07.2007 a team comprising of Sh.V.N.Tyagi (A.Manager Enf.), Sh.Rahimuddin (Engg.) and Sh.Rajender Singh (lineman) had conducted a raid at premises no.6721, Qila Kadam Sarif, Nabi Karim, Pahar Ganj, New Delhi. At the time of inspection, accused was found indulging in direct theft of Page 1 CC No.88/08 BYPL Vs. Vimla electricity by illegally tapping the nearby BSES distribution system using illegal wires i.e 2 nos. of 10mm sqr. black colour PVC aluminum wire of 2 mtr, 2 nos. of 6 mm sqr. black colour PVC aluminum wire 2 mtr. and 3 nos of 7/20 SWG red/yellow colour PVC copper wire of 3 ft. length. The visual recording showing the irregularities was conducted by member of raiding team. The total connected load of 8.673 KW/DT was assessed by the inspection team illegally used by the accused for domestic purpose. The abovesaid illegal material was seized vide seizure memo Ex.CW-2/E prepared at site.
The accused was booked for the offence of direct theft of electricity. Subsequently, theft assessment bill for sum of Rs. 1,61,485/- 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, 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. 6721, Qila Kadam Sarif, Nabi Karim, Pahar Ganj, New Delhi (to be referred as "premises in question" hereinafter) 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 26.02.2008 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 by my ld. predecessor vide order dated Page 2 CC No.88/08 BYPL Vs. Vimla 22.01.2010 to which he pleaded not guilty and claimed trial.
4. Complainant in support of its case examined three witnesses i.e PW-1 Sh. Rajeev Ranjan (Authorized Representative), PW-2 Sh.Rahimuddin (Asstt.Manager), PW-3 Sh. V.N.Tyagi (Asstt.Manager) and PW-4 D.P.Singh (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. PW-1/A. PW-2 Sh. Rahimuddin deposed that on 30.07.2008, on the instruction of DGM Enforcement, he along with Sh.V.N.Tyagi (Assistant Manager), Sh. Rajender (Lineman) had conducted a raid at the premises bearing no. 6721, Qila Kadam Sarif, Nabi Karim, Pahar Ganj, Delhi. At the time of inspection, they found that accused was indulged in direct theft of electricity by tapping illegal wires through BSES Yamuna Power Ltd distribution box which was nearby the premises. The total connected load of 8.67 KW was found being used for domestic purpose. Videography of the theft was carried out and the connected load was conducted by M/s Arora Photo Studio who had gone along with the team. CD containing the said videography is Ex.CW-2/G. The material being used for theft i.e. the wires were seized vide seizure memo Ex.CW-2/E. Inspection report, load report and meter details report are Ex.CW-2/B, Ex.CW-2/C and Ex.CW2/D. Witness identified the wires as Ex. P1 (colly).
PW-3 Sh.V.N.Tyagi, deposed that on 30.07.2007, he was posted as Assistant Manager in the company. On that day, about 11.25pm. a raiding team comprising of him, Rahimuddin (Engg.), Page 3 CC No.88/08 BYPL Vs. Vimla Rajender Singh (lineman) had conducted a raid at the premises in question. At the time of inspection there was no meter at site and electricity supply was directly consumed by the accused from nearby BYPL distribution system through illegal tapping for domestic purpose. Thereafter on his instruction, videography was captured by Sh.Sunil from M/s. Aroro Photo Studio. The CD is Ex.CW2/G. He prepared inspection report (Ex.CW-2/B). The load report (Ex.CW-2/C) and the meter details report (Ex.CW-2/D) was prepared by Sh.Rahimuddin. All the reports were prepared in the presence of accused present at site. Thereafter, he tendered all reports to accused for signatures but he refused to sign the same. On his instruction the illegal wires were removed from site by Rajinder Singh (Lineman). Sh.D.P.Singh (Manager Enforcement) had seized the illegal material i.e 2 copper wire of single core, 2 aluminium wire of single core vide seizure memo (already Ex.CW2/E) which bore his signatures at point A. He identify the case property i.e. 2 aluminium wire of 6 mm sq. of length about 2 mtr. of black colour, 2 aluminium wire of single core 10 mm sq. of length about 2 mtr. of black and three copper wire of size 3/20 red and yellow colour collectively as Ex.P1. Witness correctly identified the accused.
PW-4 Sh. D.P.Singh deposed that on 30.07.2007, he was posted as Manager Enforcement at Gandhi Market and on that day at about 11.25am, a mass raid along with the Delhi Police, CISF was conducted at premises in question. During mass raid, he received a telephonic call from Sh.V.N.Tyagi (Team Leader) that they had detected a theft of electricity at the subject premises. Subsequently, he reached at the site and on the instruction of the team leader, illegal cable i.e 2 aluminium wire of 6 mm sq. of length Page 4 CC No.88/08 BYPL Vs. Vimla about 2 mtr. of black colour, 2 aluminium wire of single core 10 mm sq. of length about 2 mtr. of black colour and three copper wire of size 3/20 of red and yellow colour were removed and seized vide seizure memo (Ex.CW-2/E). Thereafter the same was sealed in a gunny bag. He correctly identified the case property as Ex.P1.
5. In statement recorded u/s 313 Cr.PC, accused had denied the allegation and stated that she has been falsely implicated in the present case and no raid was conducted at his premises.
6. Sh. Jitender, Adv. for the accused had argued that accused is falsely implicated in this case and company failed to bring any incriminating material against him.
During cross examination, PW-2 admitted that he did not remember if any other raid was conducted on that day by him. He did not give any written application for assistance of police for the raid. They did not make any inquiry in respect to owner/occupier of premises. The distance between the distribution box and the premises was approximately 5 mtrs. They did not made any public witness.
As per PW-3 when they reached the premises, some lady members were present along with accused, however they did not mention the name of other lady members in inspection report. Accused introduced herself as owner of the premises. They did not inquire from neighbours regarding ownership of premises. PW-4 was not the member of raiding team.
The name of Rajender Singh (lineman) was neither mentioned in any of the inspection report nor he signed the same. No public person was made as a witness. He had not made any complaint to the police for initiating legal proceedings against the Page 5 CC No.88/08 BYPL Vs. Vimla accused when he refused to sign the reports. 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. 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.
7. Per contra, counsel for company has argued that during inspection, no meter was found installed at site and accused was found indulging in direct theft of electricity by illegally tapping of nearby BSES distribution system using illegal wires. The total connected load of 8.673 KW/DT was assessed by the inspection team illegally used by the accused for domestic purpose. The above said illegal material was seized vide seizure memo Ex.CW-2/E. The visual recording showing the irregularities was conducted by member of raiding team. The accused was booked for offence of direct theft of electricity. As per deposition of PW-2, PW-3 and PW-4 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.
In complaint videography was conducted by member of raiding team, however, as per deposition of witnesses the same was conducted by Sunil from M/s. Arora Photo Studio. It was not proved Page 6 CC No.88/08 BYPL Vs. Vimla as to why the name of Sunil was not mentioned in list of witnesses if he was the member of raiding team. The team had no knowledge as to who gave the information to DGM Enforcement to conduct the raid regarding the theft of electricity at the premises in question. The CD contained the video footage of 3 mins 31 seconds, out of which it could play only 31 seconds approximately. Witnesses deposed that during inspection it was found that there was no meter installed at site, however, the said fact is not mentioned in complaint. The complaint as well as PW-2 and Pw-3 were silent about the fact that CISF and Delhi police official were with the team at the time of raid however, PW-4 deposed that team comprised of CISF and Delhi police official.
The company failed to examine Sh.Rajender Singh who was members of raiding team. No explanation has been assigned for non examination of this witnesses as he removed the illegal wires. 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.CW-2/B) in column no.2.2 name of the user is Vimla ("as stated"), however, it was not specified as to who disclosed the name of accused. As per deposition of witnesses the accused was present at spot, however, complaint is silent about the presence of accused at the spot.
Page 7 CC No.88/08 BYPL Vs. Vimla
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 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 Vimla 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.
11. As per judgment of Hon'ble High Court in 2012 (4) JCC 2713 titled as BSES Rajdhani Power Ltd. Vs. Sunheri & Ors. the company was under obligation to examine the member of raiding team who conducted videography. As per complaint it was member of raiding team who conducted videography, however, as per deposition of witnesses it was Sunil from M/s. Arora Photo Studio.
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 Page 8 CC No.88/08 BYPL Vs. Vimla 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).
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 09.01.2008 after about 4 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 (Krishnan Vs. State AIR 2003 SC 2978).
13. 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. No such list is either placed on record for showing as to who was the authorized officer to make this inspection.
14. The Authorized officer who had disconnected Page 9 CC No.88/08 BYPL Vs. Vimla 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.
15. 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. 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. 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.
16. 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 Page 10 CC No.88/08 BYPL Vs. Vimla 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. In the present case, company has not proved the case by positive evidence as the testimony of PW-2, PW-3 and PW-4 has material contradictions which are already observed in the foregoing paras. Moreover, 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.
18. 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 30.07.2007 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/23.01.2015
Page 11
CC No.88/08
BYPL Vs. Vimla
23.01.2015
Present: Sh. Jitender Shankar, Authorized Representative for the
complainant company.
Sh.Parveen Yadav, Adv. for accused alongwith accused 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 cancelled and surety 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.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 the accused along with latest passport size photograph 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/23.01.2015
Page 12