Delhi District Court
Bypl vs . Shadab on 24 February, 2015
CC No.625/08
BYPL Vs. Shadab
IN THE COURT OF SHRI ARUN KUMAR ARYA,
ADDITIONAL SESSIONS JUDGE, SPECIAL COURT
(ELECTRICITY), TIS HAZARI COURT, DELHI
CC No. 625/08
Unique case ID No.02402R0859602008
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.
Sh.Shadab
R/o. H.No. 4464, Gali Shahtara,
Hauz Qazi, Ajmeri Gate, Delhi ................ Accused
Through: Sh.Parveen Yadav, Adv. for accused
Date of Institution : 17.09.2008
Judgment reserved on : 16.02.2015
Date of Judgment : 24.02.2015
Final Order : Acquittal
JUDGMENT
1. As per complaint, on 30.06.2008 at 12.55 pm., a team comprising of Sh.K.L.Jain (Asstt. Manager), Sh. Arijit Dass (Engg.), Sh. Nagender Pal (Elec.), Sh.Ram Surat (lineman) alongwith CISF and ASI Kanwar Sahib from Police station Hauz Qazi had conducted a mass raid at premises no. 4464, Gali Shahtara, Hauz Page 1 CC No.625/08 BYPL Vs. Shadab Qazi, Ajmeri Gate, Delhi. At the time of inspection, no meter and D.G. set was found installed at site. User was using the supply directly by tapping the illegal wire from another BSES service cable. The visual recording of direct illegal theft wire and connected load was taken. The total connected load of 11.760 KW/DX/NX (i.e 7.246 KW/DX + 3.760 KW/NX) was assessed by the inspection team illegally used by the accused for domestic and non domestic purpose. The illegal material i.e PVC wire of 4mm sq. 4 mtr. black color was seized vide seizure memo Ex.CW-2/3 by Sh.K.L.Kain (AM). The necessary visual recording showing the irregularities were taken by the member of raiding team through Sh. Parvesh (M/s. Arora Photo Studio).
The accused was booked for the offence of direct theft of electricity. Subsequently, theft assessment bill for sum of Rs. 2,30,323/- 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. 4464, Gali Shahtara, Hauz Qazi, Ajmeri Gate, 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 24.10.2008 after pre-summoning evidence. Notice u/s 251 Cr.PC of Page 2 CC No.625/08 BYPL Vs. Shadab offence punishable u/s 135 and 151 of Electricity Act, 2003 was framed against the accused by my ld. predecessor vide order dated 11.02.2010 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) and PW-2 Sh.K.L.Kain (Sr.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. K.L.Kain, Senior Manager deposed that on 30.06.2008, he was posted as Assistant Manager. On that day at about 12:55 PM a mass raid was conducted by a team consisted of him, Sh. Arjit Dass (GET), Sh. Nagender Pal and Sh. Ram Swaroop (both lineman), Sh. Parvesh Videographer from M/s Arora Photo Studio alongwith CISF and local police from PS Hauz Qazi at the premises bearing no. 4464, Gali Sitara, Hauz Qazi, Ajmeri Gate.
During inspection, there was no meter at site and the entire electricity found connected through illegal wire from the another BSES user service cable. On his instruction, the videography was done by Mr. Parvesh from Arora Photo Studio to the possible extent of connected load as well as mode of theft. The CD of said videography was Ex.CW-2/D. He prepared inspection report Ex. CW2/A (colly.), a meter detail Ex.PW-2/A and connected load report Ex. CW2/B (colly.) at site which bore his signatures at point A. They found connected load to the tune of 11.006 KW for domestic and non domestic purpose used by the accused at the time of inspection running through illegal wire. Domestic load was found 7.246 KW and Page 3 CC No.625/08 BYPL Vs. Shadab 3.76 KW for non domestic purpose. On his instruction, illegal wire was removed from site and sealed in a gunny bag with his seal vide seizure memo prepared at site as Ex. CW2/C. The accused was present at site. They offered the entire documents to the accused who refused to sign and did not allow to paste the same. He identified the case property i.e two pieces of black colour 4mm Sq. single core of black colour length approx.4mts. each as Ex. P1
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.
6. Sh. Parveen Yadav, 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 was not carrying any written authority to conduct the raid in question. He did not remember the area of the premises. He neither tell the name of persons who were present at site nor their relationship with the accused. They never joined any public person as a witness during the raid. They did not check the papers of ownership of accused. They inquired about the address of the premises in question from the persons present there, however, could not tell the name and addresses of those persons. They did not verify from any government authority as to the ownership of the premises. He admitted that he had never played the CD, filed on record on computer in his examination in chief on 04.01.2012. The details of other user from whose service line the theft was going on was not filed on record. He Page 4 CC No.625/08 BYPL Vs. Shadab further admitted that they did not paste a copy of documents at the premises in question as they never conducted the raid at the premises in question.
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 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 and DG set was found installed at site and accused was found indulging in direct theft of electricity by illegally tapping the illegal wire from another BSES service cable. The videography was conducted by Parvesh from M/s.Arora Photo Studio. The total connected load of 11.006 KW/NX/DX/DT (i.e 7.246 KW/DX + 3.760 KW/NX) was assessed by the inspection team illegally used by the accused for domestic and commercial purpose. The illegal material i.e PVC wire of 4mm sq., 4 mtr. black color was seized vide seizure memo Ex.CW-2/3 by Sh.K.L.Kain (AM). The accused was booked for offence of direct theft of electricity. As per deposition of PW-2 the company has proved its case against the accused beyond reasonable doubt, accordingly, accused is liable to be convicted in this case.
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8. I have gone through the evidence adduced on record and considered the arguments of counsel for both the parties.
The company failed to examine Sh.Arijit Das (Engg.), Sh. Nagneder Pal (electrician), Sh.Ram Surat (lineman) and Parvesh Photographer 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 is 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/A) in column no.2.2 name of the user is Shadab ("as stated"), however, it was not specified as to who disclosed the name of accused. Complaint is silent about the fact whether accused was present at the spot or not. PW-2 admitted in his cross that accused refused to sign the reports and also did not allow to paste the same, why the said fact of refusal was not reported to the police when they accompanied the team. The CD was not played in the present case. As per complaint para no.6, the meter was removed and seized at site, however, as per para no. 9 of said complaint, seizure memo and deposition of witness PW-2 only illegal wire was removed and seized. Police witnesses were also not examined.
9. The company did not procure the documents Page 6 CC No.625/08 BYPL Vs. Shadab 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 'Shadab' 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. The Compact disc (Ex.CW-2/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 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).
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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 17.09.2008 after about 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 (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 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.
Page 8 CC No.625/08 BYPL Vs. Shadab The company has not lodged any FIR in this case, with the local police, though CISF and local police accompanied the team, 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 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.
Page 9 CC No.625/08 BYPL Vs. Shadab
17. In the present case, company has not proved the case by positive evidence as the testimony of 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.
18. 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 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 30.06.2008 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/24.02.2015
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CC No.625/08
BYPL Vs. Shadab
24.02.2015
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/24.02.2015
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