Delhi District Court
Bses Yamuna Power Ltd vs . on 13 January, 2015
IN THE COURT OF SHRI ARUN KUMAR ARYA,
ADDITIONAL SESSIONS JUDGE, SPECIAL COURT
(ELECTRICITY), TIS HAZARI COURT, DELHI
CC No. 1006/07
Unique case ID No.02402R0079712009
BSES Yamuna Power Ltd.
Having its Registered office at
Shakti Kiran Building,
Karkardooma, Delhi110032
(Through its authorized representative
Sh. C. B. Sharma) ............ Complainant
Vs.
1) Vinod (User)
2) Kailash (User)
3) Rajinder Kkumar Malhotra (Proprietor)
All R/o. E 16 / 925 - T
Padam Singh Road,
Khalsa Nagar, Tank Road
New Delhi ........ Accused persons
Date of Institution : 21.11.2007
Judgment reserved on : 05.01.2015
Date of Judgment : 13.01.2015
Final Order : Acquitted
CC No: 1006/07
Police Station: Patel Nagar
BYPL Vs. Vinod Etc. Page 1/16
JUDGMENT
1. As per factual matrix, on 25.01.2007, at 4:45 PM, as per the direction of the Manager (O & M) Patel Nagar, Sh. Athar Javed, an inspection was carried out by the officials of the complainant company comprising of Sh. Likhi Ram, Sh. D. K. Arya, Sh. Ravinder Kumar (All Assistant Manager), Sh. Suresh Kumar (Engg.), Sh. D. K.Jain and Sh. Ashok Kumar (LM) at the premises bearing no. 16/925 - T, II & IIIrd floor, Khalsa Nagar Tank Road, Delhi (to be referred as "premises" hereinafter).
During inspection, accused no. 1 and 2 were allegedly found to be as the users of the electricity and accused no. 3 as owner of the premises. The users were found indulging in direct theft of electricity by tapping other user's service line of BYPL. No meter was found at site and entire connected load was running on the BYPL line. The connected load of 17.860 KW was assessed by the team being used for industrial purpose. Photographs were taken by joint team with digital camera.
Sh. Athar Javed, Manager O & M was called at site and in his presence the material evidence i.e 1 Alluminium PVC wire + Copper wire of 2X10 MM Sq. + 7 X 20 SWG 2.80 having joints used for direct theft of electricity was seized. All the accused persons were booked for the offence of direct theft of electricity.
2. The complainant is a company incorporated CC No: 1006/07 Police Station: Patel Nagar BYPL Vs. Vinod Etc. Page 2/16 under the Companies Act, 1956 (to be referred as "company" hereinafter) having its registered office at Shakti Kiran Building, Karkardooma, Delhi32 and having its branch office at different places in Delhi. The present case was filed through Sh. C. B.Sharma, Authorized Representative.
3. Subsequently, theft assessment bill in the sum of Rs.7,03,473/ was raised against the accused on the basis of the inspection dated 25.01.2007
4. The accused persons were summoned U/S 135 of the Electricity Act 2003 (to be referred as "Act" hereinafter) by my ld. predecessor vide order dated 05.12.2007 after presummoning 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 on 16.01.2009 to which all the accused persons pleaded not guilty and claimed trial.
5. Complainant in support of its case examined 3 witnesses namely PW1 Sh. Rajeev Ranjan, PW - 2 Sh. Likhi Ram and PW 3 Sh. Athar Javed. Accused no. 1 Binod Kumar and accused no. 3 Rajinder Kumar Malhotra examined themselves in defence as DW - 1 and DW - 2 respectively.
PW - 1 Sh. Rajeev Ranjan deposed that the present complaint Ex.CW1/B was filed by Sh. C. B. Sharma. The company executed a power of attorney in his favour Ex. CW1/A. CC No: 1006/07 Police Station: Patel Nagar BYPL Vs. Vinod Etc. Page 3/16 PW - 2 Sh. Likhi Ram, deposed that on 25.01.2007 as per the direction of Manager (O & M) Sh. Athar Javed, a raid was conducted at the premises. He was accompanied by Sh. D. K. Arya, Sh. Ravi Inder Singh, Sh. Suresh Kumar, Sh. D. K. Jain and Sh. Ashok Kumar. During inspection it was found that accused were found indulging in direct theft of electricity from other user's service line. Necessary photographs qua the connected load and mode of theft were taken by team member. The inspection report Ex. CW2/A (colly) was prepared at the spot. The connected load was assessed to be 17.86 KW/IX and report Ex. CW2/B was prepared. Photographs placed on record were Ex. CW 2/D and CD Ex. CW 2/E. The team called Sh. Athar Javed at the spot for seizing the material and the illegal material i.e one two core of black colour (2X10 mm) aluminium having joint with copper wire (7/22) of red colour were seized vide seizure memo Ex. CW2/C. The reports were not signed by the accused persons who were present at the site.
PW - 3 Sh. Athar Javed, deposed that on 25.01.2007, he was posted as Manager Operation & Maintenance and on that day at about 05:45 PM, he received a telephonic call from Sh. Likhi Ram (AM), stating that they had detected theft of electricity at the premises. He reached at the site and seized the material i.e. aluminium PVC and Coper wires of size 2X10 MM Sq. and 7X20 SWG in a gunny bag with seal of Manager O & M vide seizure memo (already Ex. CW2/C) CC No: 1006/07 Police Station: Patel Nagar BYPL Vs. Vinod Etc. Page 4/16 which bears his signatures at point C. He correctly identified the case property Ex. P1 & P2.
DW1 Sh. Binod Kumar, deposed that he was residing in the premises in question since 2004 as a tenant at third floor in one small room having tin shed. He produced his election card and Adhar Card Ex. DW 1/A and Ex. DW 1/B. There were about 15 tenants at the premises in question. He was doing work for his livelihood near Tank Road Market and depositing his earnings with his landlord Sh. Rajender Kumar. Sh. Rajender Kumar advised him to deposit electricity bills on behalf of all the tenants inhabiting in the building. Since 2007, he along with Kailash depositing the electricity bills out of joint earning funds through cheques Ex. DW 1/C (collectively). Electricity bills from the year 2007 till date were Ex. DW 1/D (collectively). He and Kailash paying electricity bills on behalf of the other tenants shown in the round circles Ex. DW 1/E. DW - 1A Sh. Rajender Kumar Malhotra, deposed that he resides at the premises bearing no. A1/51 B, Janta Flats,A1 Paschim Vihar, Delhi for the last 25 years. He produced the copy of ration card and gas connection as Ex. DW1A/A and Ex. DW 1A/B. He was the owner of the premises mentioned in the complaint but never resided there. Accused no. 1 and 2 were his tenants but he did not know about the raid and came to know about the present case after receiving the notice from the court. He had also filed a case of CC No: 1006/07 Police Station: Patel Nagar BYPL Vs. Vinod Etc. Page 5/16 eviction against accused no. 1 and 2 which was decreed in his favour. (This witness was earlier designated as DW 1, however, as per order dated 17.12.2014, he was read as DW 1A).
6. In his statement recorded U/S 313 Cr.P.C, accused has denied the allegations and are pleaded ignorance about the raid conducted in the premises.
7. Sh. Vijay Kumar Ravi, Counsel for accused no. 1 Vinod and accused no. 2 Kailsh and Sh. A. K. Gupta, Counsel for accused no. 3 Rajender Kumar Malhotra argued that accused persons were falsely implicated in this case and company failed to bring any incriminating material against them.
PW1 during cross examination admitted that he was not the member of the raiding team and had not signed or filed the present complaint.
PW - 2 Sh. Likhi Ram admitted that accused Kailash and Vinod were not the owner of the premises. He had not inquired whether the landlord was residing in the property or about the number of tenants living in the property. He was directed telephonically to conduct a raid on 25.01.2007. One meter was installed at the premises and used in GF and first floor. The aluminium wire of 2 X 10 sq. mm was connected with the LV mains and another copper wire was connected with the consumer end but the same were not photographed by the team. He could not tell about the exact carrying CC No: 1006/07 Police Station: Patel Nagar BYPL Vs. Vinod Etc. Page 6/16 capacity of both the wires separately or jointly. During inspection, Mr. Akhtar Javed was not present at the premises. Accused no. 3 Rajender Malhotra was not available at the site. The team did not try to verify the name of the owner of the premises and relied only on the statement of Vinod and Kailash, but failed to recognize them in the photographs. He identified the photograph of meter in question. He stated that the inspection report and load reports were prepared in the handwriting of Mr. Ravinder Singh AM. Neither the police force was with them nor they tried to call them. Sh. Likhi Ram PW - 2 had no written authority letter for the inspection being the AM and the leader of the team at that time. He did not mention the instruments used by the inspection team for the purpose of inspection on any of the reports.
During cross examination, PW 3 Sh. Athar Javed admitted that he had no information whether the inspection was photographed or not. It was contended that company had failed to prove its case so, accused persons are entitled to be acquitted in this case.
Per contra, Counsel for company has argued that on 25.01.2007, at about 04:45 PM an inspection was carried as per direction of the Manager O & M PNR Sh. Athar Javed, by the officials of the complainant company at the premises. Accused no. 1 and 2 were the users of the electricity and accused no. 3 was the owner of CC No: 1006/07 Police Station: Patel Nagar BYPL Vs. Vinod Etc. Page 7/16 the premises in which electricity was being used. The users were found indulging in direct theft of electricity through tapping other user's service line of BYPL. No meter was found at site and entire connected load was running on the BYPL line. The connected load of 17.860 KW was assessed by the team being used for industrial purpose. Photographs were taken by joint team with digital camera. Sh. Athar Javed, Manager O & M was called at site and in his presence the material evidence i.e 1 Alluminium PVC wire + Copper wire of 2X10 MM Sq. + 7 X 20 SWG 2.80 having joints used for direct theft of electricity was seized. The company has proved its case against the accused persons beyond reasonable doubt and they are liable to be convicted in this case.
8. I have gone through the documentary evidence adduced on record and arguments advanced at bar by counsels for accused.
Inspection report was prepared by Sh. Ravinder Singh but he was not examined in the court to prove the same. Site plan was silent on the aspect as to who prepared the same. Site plan did not divulge about the manner and mode of theft as the same was carried out by tapping through the other user's service line. No sketch was filed on record showing floors or the rooms on each floor. None of the witness proved this fact on record.
Om Parkash and accused no. 3 were stated to be the CC No: 1006/07 Police Station: Patel Nagar BYPL Vs. Vinod Etc. Page 8/16 owner of the premises however, company did not call Om Prakash as a witness. DW - 1 Sh. Binod Kumar deposed that he was the labour of one Sh. Ram Kumar who was the owner of manufacturing units of garments at the premises. The company did not make any inquiry of this Ram Kumar or any other occupant of the building. He deposed that there were 15 tenants at the premises and it is on record that the inspected premises had 4 floors. But, company had not made any inquiry from other tenants in the premises.
It was the case of the company that accused used the electricity through tapping other user's service line, however name of that other user was not mentioned and no effort was made to call him as a witness in this case. Company has stated accused no. 3 as owner of the premises, however, they did not make any inquiry before or after filing the complaint regarding his ownership. They did not take help of the police by lodging the FIR for proper investigation in this case.
The rent agreements allegedly signed between accused no. 3 and accused no. 1 (Mark A) and with accused no. 2 as (Mark B) did not inspire confidence. The rent agreement mark A is allegedly written on 15.01.2007 whereas same has been notarised on 13.01.2007. None of the witnesses of these rent deeds has been examined in the court, so, no importance can be attached to these documents. As the agreements accused no. 3 was the owner of the CC No: 1006/07 Police Station: Patel Nagar BYPL Vs. Vinod Etc. Page 9/16 3rd floor of the inspected property, whereas no such sale deed or other document was placed on record showing as ownership.
No investigation was carried out by the company to ascertain as to who were the actual occupier of the premises. The joint from which the alleged theft was being carried out is shown in the photograph before the meter but the non examination of registered consumer of this meter installed at the premises leaves major dent in the case of the company.
PW - 2 Sh. Likhi Ram gave varied version is respect to mode of theft. At one place, he deposed that the mode of theft was by tapping illegal wires from service line of other user's and at the place the mode of theft was from LV mains. He has no knowledge about the exact carrying capacity of wires which were allegedly seized. He could not recognize the accused Vinod and Kailash specifically. He recognized accused Rajinder for the first time when he met him in the court. He admitted that accused Kailash and Vinod were not the owner of the inspected property, so it was his bounden duty to inquire about the occupancy of these accused. On a particular question he admitted that both ends of the wire was ever connected with any of the devices.
In the photographs Ex. CW 2/D one meter was shown at mark K, however, the photograph does not show any K No, CA or Meter number which could prove that it was the same meter which CC No: 1006/07 Police Station: Patel Nagar BYPL Vs. Vinod Etc. Page 10/16 was installed at the premises. Company did not mention the meter number in its inspection report or seized the same. Company was under obligation to seize the entire case property to prove their case against the accused persons.
Photographs were taken by team members but the crucial witness i.e. PW - 2 Sh. Likhi Ram did not tell as to who had actually taken the same. The person who took the photographs was not examined 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 photographer as well as entire case property was held to be fatal to the case of the company.
The Compact disc (Ex. CW2/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 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 Court of Delhi).
CC No: 1006/07 Police Station: Patel Nagar BYPL Vs. Vinod Etc. Page 11/16 Company failed to examine Sh. D. K. Arya, Sh. Ravinder Kumar (who prepared inspection as well as load report) Sh. Suresh Kumar, Sh. D. K. Jain and Sh. Ashok Kumar in the court. The complaint as well as witnesses are silent about fact whether the inspection reports were offered to the accused person, however, on the inspection reports it was reported that "refused to sign and not allowed to paste". The name of the person who refused to sign the reports was not mentioned.
9. The evidence adduced on record can be simply termed as "Hearsay Evidence" and hence no evidentary value. Company has also not examined that person who disclosed the name of the accused. Reliance is placed on judgment of Hon'ble High Court of Delhi in Crl.L.P No.598/2013 titled as BYPL Vs. Guddu dated 21.01.2014.
10. Sh. Ashok Kumar who was the member of the raiding team did not sign on the reports. 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 abovesaid members of raiding team casts doubt on the report itself.
11. This inspection was carried out in the year 2007, the company was under obligation to carry a written authority CC No: 1006/07 Police Station: Patel Nagar BYPL Vs. Vinod Etc. Page 12/16 signed by designated officer of the licensee as per Regulations 25 (i) of 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.
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. Thus, the company has failed to comply Section 135 sub clause (3) & (4) of Electricity Act in respect to search and seized of case property in the present case.
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 CC No: 1006/07 Police Station: Patel Nagar BYPL Vs. Vinod Etc. Page 13/16 this complaint and cited as a witness in the complaint was not examined in the court either, so the complaint Ex.CW1/B remains unproved on record.
The inspection was carried out on 25.01.2007 and company has filed the case in the court on 21.11.2007 after a period of 7 months which remains unexplained on their part. The company could have filed complaint against the accused persons with the police to elucidate the entire facts of the case which the police could have done in more meaningful manner.
12. 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.
13. Although conviction can be based on the testimony of a single witness which seems trustworthy and reliable. In the present case, the testimony of PW - 2 has material contradictions. It is relevant to note that all the witness failed to prove that accused persons were the user of the electricity at the time of CC No: 1006/07 Police Station: Patel Nagar BYPL Vs. Vinod Etc. Page 14/16 inspection. A combined reading of the statements of the witnesses along with their cross examination failed to show that any documentary proof was obtained by the raiding team to prove that he was in the occupation of the inspected premises at the time of inspection. Thus, the complainant failed to discharge the initial burden of proof under the proviso to Section 135 (1) of the Act that person / accused charged was the consumer. The judgment of Hon'ble High Court of Delhi in CRL.A. 438/2012 & Crl. M. B. 754/2012 titled as Manoj Kumar Vs. BSES Rajdhani Power Ltd. dated 14.05.2013 is relied on this aspect. 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.
As per record, it is admitted case that accused persons are at logger heads and have filed cases against each other which are pending in other courts. So, no credence can be given for counter allegations against each other in the present case.
In view of the foregoing discussion, the company has failed to prove its case against all accused persons beyond reasonable doubt, they are accordingly acquitted. Bail bond of the accused persons are canceled and their sureties are discharged. Amount, if any, deposited by the accused persons as a condition for bail or in pursuance to interim order of any court qua the theft bill CC No: 1006/07 Police Station: Patel Nagar BYPL Vs. Vinod Etc. Page 15/16 raised by the company on the basis of inspection dated 25.01.2007 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/13.01.2015
CC No: 1006/07
Police Station: Patel Nagar
BYPL Vs. Vinod Etc. Page 16/16