Delhi District Court
Bypl vs . Ravinder Kumar on 23 March, 2015
CC No.327/08
BYPL Vs. Ravinder Kumar
IN THE COURT OF SHRI ARUN KUMAR ARYA,
ADDITIONAL SESSIONS JUDGE, SPECIAL COURT
(ELECTRICITY), TIS HAZARI COURT, DELHI
CC No. 327/08
Unique case ID No.02402R0027462009
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 Sh. Nilesh
Kumar, Ld.Counsel for the company.
Vs.
Ravinder Kumar
9764, F/F., Gali No.8,
Multani Dhanda,
Pahar Ganj, New Delhi ................ Accused
Through: Sh.Nand Kishore, Adv. for accused
Date of Institution : 17.05.2008
Judgment reserved on : 16.03.2015
Date of Judgment : 23.03.2015
Final Order : Acquittal
JUDGMENT
1. Briefly, on 23.01.2008 at 02.35 am, as per the reference given by the B.M.(Paharganj) a team comprising of Sh.R.P.Aggarwal (AM), Sh.R.P.Sharma (GET), Sh.Rajiv Kumar, Sh. Zainul Hasan and Sh. Ram Sant (all lineman) had conducted a raid at premises no.9764, F/F., Gali No.8, Multani Dhanda, Pahar Ganj, Delhi. At the time of inspection, no meter was found installed at site and accused was found indulging in direct theft from BSES service Page 1 CC No.327/08 BYPL Vs. Ravinder Kumar cable through illegal cable. The videogarphy of inspection was captured by Sunil from M/s. Arora Photo Studio. The total connected load of 7.536 KW/DX/DT assessed by the inspection team was illegally used by the accused for domestic purpose. The illegal material i.e 1 piece of two core aluminium wire of size 2/10, 1 mtr, yellow colour was seized vide seizure memo Ex.CW-2/Cprepared at site. The accused was booked for the offence of direct theft of electricity. Subsequently, theft assessment bill for sum of Rs. 1,00,110/- was raised against the accused. On the failure of accused to deposit the same, present complaint was filed against him.
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 no.9764, F/F., Gali No.8, Multani Dhanda, Pahar Ganj, Delhi (to be referred as "premises" 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 25.09.2008 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 12.05.2009 to which he pleaded not guilty and claimed trial.
4. Complainant in support of its case examined Page 2 CC No.327/08 BYPL Vs. Ravinder Kumar three witnesses i.e PW-1 Sh. Rajeev Ranjan (Authorized Representative), PW-2 Sh.R.P.Aggarwal and PW-3 Sh.R.P.Sharma.
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.R.P.Aggarwal deposed that on 23.01.2008 he was posted with the company as Assistant Manager. On that day about 14.35 PM, a raid was conducted on the reference of Business Manager, Pahar Ganj by himself along with Sh.R.P.Sharma (GET), Sh. Rajeev Kumar (DET), Sh.Zamuel Hassan and Sh.Ram Sant (both linemen) on the premises bearing no. 9760, 1st & 2nd floor, Gali No.8, Multani Dhanda, Pahar Ganj. During inspections there was no meter at site. The accused had stealing electricity through illegal wire from BSES service cable. The entire connected load of 7.536 KW was running through this illegal wire for the purpose of domestic purpose. They prepared a load report already Ex.CW-2/B (colly) and inspection report already Ex.CW2/A (colly) which bore his signature at point 'A'. On his instruction Sh.Sunil from M/s Arora photo studio had conducted videography of the entire incident and the true copy of CD was already Ex.CW2/D. Thereafter, on his instruction the illegal wire was removed from the site, seized and sealed with the seal of Assistant Manager enforcement vide seizure memo Ex.CW2/C. After inspection they offered entire inspection report to the lady present at site but she refused to sign the same and did not allow to paste the same on the wall of the premises. The lady present at site told that the premises belonged to Sh. Ravinder Kumar. He identified the case property i.e 2 core alluminium wire size 2X10 mm sq length about 1 meter of yellow color as Ex. P1 Page 3 CC No.327/08 BYPL Vs. Ravinder Kumar PW3 R.P.SHARMA deposed on the same lines as that of PW-2.
5. In statement recorded u/s 313 Cr.PC, accused had denied the allegations and stated that he has been falsely implicated in the present case. He stated that no raid was conducted at his premises.
6. Sh. Nand Kishore, Adv. for the accused had argued that accused was falsely implicated in this case and company failed to bring any incriminating material against him.
The team took the entire connected load in the presence of lady present at site, who told that property belonged to Sh.Ravinder Kumar, however he did not ask the name and address of said lady. He could not remember if accused was present at the spot or not or that supply was being used for domestic purpose through illegal cable from other service cable. The wire which was used for illegal tapping was measuring about one or two meter of yellow colour. He did not mentioned the pole number in the inspection report. On seeing the CD he states that he could not identify the woman who identified the house of accused.
They did not inquire as to the ownership of the premises from the neighbours or accused either at the time of inspection of the premises or before filing of present complaint. The lady present at premises disclosed that the premises belongs to accused Ravinder Kumar, however, the team did not record the statement of said lady or cited her as a witness in the complaint.
The signatures of Zainul Hasan (lineman) was not taken Page 4 CC No.327/08 BYPL Vs. Ravinder Kumar on inspection reports except seizure memo. No public person was made as a witness. No complaint was made to the police for initiating legal proceedings against the accused and for proper investigation in the case. The documents of ownership / occupancy were not procured by the team. 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 of electricity 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 from BSES service cable for other through illegal cable. The illegal material i.e 1 pcs of two core aluminium wire of size 2/10 length 1 mtr, yellow colour was seized vide seizure memo Ex.CW-2/C prepared at site. The total connected load of 7.536 KW/DX/DT assessed by the inspection team illegally used by the accused for domestic purpose. The videogarphy of inspection was captured by Sunil from M/s.Arora Photo Studio. The accused was booked for offence of direct theft of electricity. As per deposition of PW-2 to PW-3 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.
Page 5 CC No.327/08 BYPL Vs. Ravinder Kumar The company failed to examine Sh.Rajeev Kumar (DET), Zainul Hasan and Ram Sant (both lineman). 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. The 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 occupancy of accused is to be proved by positive evidence.
In the inspection report (Ex.CW-2/A) in column no.2.2 name of the user is Ravinder Kumar ("as stated"), however, the lady who was present at spot and disclosed the name of accused was not named or examined in the court. As per compliant, the accused refused to sign the inspection reports, however, the said fact was not reported to the local police.
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 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 Page 6 CC No.327/08 BYPL Vs. Ravinder Kumar accused '' Ravinder Kumar'' 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 Sunil from M/s. Arora Photo Studio who conducted videography.
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).
12. As per Regulation 52 (Vii) 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 17.05.2008 after about 4 months of inspection. Prompt and early Page 7 CC No.327/08 BYPL Vs. Ravinder Kumar 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 Standard 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.
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) Page 8 CC No.327/08 BYPL Vs. Ravinder Kumar 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.
17. In the present case, company has not proved the case by positive evidence as the testimony of witnesses 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.
Page 9 CC No.327/08 BYPL Vs. Ravinder Kumar There is no material evidence on record which connect the theft with the accused.
18. In view of the foregoing reasons, as the company has failed to prove the theft of electricity against the accused beyond reasonable doubt in the present case. The accused 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 23.01.2008 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/23.03.2015
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CC No.327/08
BYPL Vs. Ravinder Kumar
23.03.2015
Present: Sh. Jitender Shankar, Authorized Representative for the
complainant company.
Sh.Nand Kishore, 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 canceled 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/23.03.2015
Page 11