Delhi District Court
Bypl vs . Md.Danish & Ors. on 29 August, 2014
CC No: 211/09
BYPL Vs. Md.Danish & Ors.
IN THE COURT OF SHRI ARUN KUMAR ARYA,
ADDITIONAL SESSIONS JUDGE, SPECIAL COURT
(ELECTRICITY), TIS HAZARI COURT, DELHI
CC No. 211/09
Unique case ID No.02401R0381962009
BSES Yamuna Power Ltd.
Having its Registered office at
Shakti Kiran Building,
Karkardooma, Delhi-110032
(Through its authorized representative
Sh. C. B. Sharma) ............ Complainant
Vs.
1. Md.Danish
2. Md. Salim
H.NO. 2144, second floor,
Third floor, Ahata Meer,
Bukhanri Near Turkman Gate,
(Pole No.DRG-a-780), Delhi. .............. Accused
Date of Institution : 05.05.2009
Judgment reserved on : 25.08.2014
Date of Judgment : 29.08.2014
Final Order : Acquittal
JUDGMENT
1. As per factual matrix, on 03.02.2009 at 13.30 hrs, a team of complainant company comprising of Sh. K.L.Kain (Sr.Manager), Sh. Jitender Raghav (DET), Sh. Krishan Kumar and Sh.Surender Kumar (both lineman) with CISF and HC Rohtash Singh from PS Chandni Mahal conducted an inspection / raid at premises of the accused persons situated at H.NO. 2144, 2nd, 3rd Floor, Ahata Page 1 CC No: 211/09 BYPL Vs. Md.Danish & Ors.
Meer Bukhanri, Near Turkman Gate, (Pole No. DRG-A-780) Delhi (hereinafter to be referred as "subject premises") where it was found that accused no.1 (Md.Danish) was tenant of accused no. 2 (Md. Salim) and was using the electricity at inspected premises. No meter and DG set was found at site. The user i.e accused no. 1 was using the electricity supply directly by tapping BSES common S/Cable with illegal wire. The total connected load was found as 18.389 KW/ DX/DT. Videography showing the irregularities was conducted by one photographer Parvesh of M/s. Arora Photo Studio. Videography could not be conducted due to parda system and hindrance by user for proper assessment of connected load at site.
During the course of inspection, the material used for direct theft of electricity was seized by K.L.Kain (Sr. Manager Enf.) i.e single core PVC copper illegal wire qty 02, size 7/20 colour yellow, length 2 mtr (two RIS) approx. vide detailed seizure memo prepared at site. The accused persons neither signed nor allowed the team member to paste the inspection report at the subject premises. An assessment theft bill of Rs.2,42,362/- was raised against the accused for theft of electricity.
2. The complainant company (to be referred as "company" hereinafter) i.e. BSES Yamuna Power Ltd has filed the present complaint case under section 135 read with section 151 of the Electricity Act, 2003 (hereinafter to be referred as "Act) against the accused praying that accused be summoned, tried and punished as per law alongwith prayer to determine the civil liability of the accused as per provisions of Section 154 (5) of the Act.
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3. After recording the pre summoning evidence of the company, the accused persons were summoned U/S 135 of the Electricity Act 2003 by my ld. predecessor vide order dated 29.10.2009. As accused no. 2 (Md. Salim) did not appear in the court, consequently he was declared proclaimed offender by order dated 04.01.2012 of my ld. predecessor.
4. Notice u/s 251 Cr.PC of offence punishable u/s 135 r/w section 150 of Electricity Act, 2003 was framed against the accused no.1 (Danish) by my ld. predecessor vide order dated 19.03.2012 to which he pleaded not guilty and claimed trial.
5. Company in support of its case examined three witnesses namely PW-1 Sh. K.L.Kain (Sr. Manager) and PW-2 Rajeev Ranjan (Authorized representative).
Pw-1 Sh.K.L.Kain deposed that on 03.02.2009 he was posted as a Senior Manager. On that day, as per the direction of DGM (Enforcement), a team comprising him, Sh.Jitender Raghave (DET), Sh. Surender Kumar and Krishan Kumar (both lineman) and Sh. Parvesh Videographer from M/s Arora Photo Studio conducted a mass raid at premises bearing no. 2144, 2 nd and 3rd floor, Ahata Meer Bukhanri Near Turkman Gate, Delhi. The accused was present at site and was found indulging in direct theft of electricity by tapping BSES common main line with illegal wire. There was no meter at site. The total connected load was found to the tune of 18.389 KW which was being used for domestic purpose. They took the videography of illegal tapping and physically checked the connected load. Due to "Parda system" the persons did not allow the team to take the complete Page 3 CC No: 211/09 BYPL Vs. Md.Danish & Ors.
videography of connected load. He prepared inspection report (Ex.CW-2/A) which bore his signatures at point A. The load report (Ex.CW-2/B) was prepared by Sh. Jitender Raghav Sharma as per his instruction which bore his signatures at point A. Thereafter, they removed the illegal wire and seized the same vide seizure memo (Ex.CW-2/C) prepared at site by team member in a gunny bag with his seal. He correctly identified the case property i.e two pieces single core PVC copper wire of size 7/20 SWG of length about 2mtrs. as Ex.P1.
PW-2 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. CW-2/A to act, appear and plead on behalf of the company in this case.
6. In statement recorded u/s 313 Cr.PC, accused has denied the allegation and stated that he has been falsely implicated in the present case and no raid was conducted at his premises.
7. Sh. Parveen Yadav, Ld. Counsel for the accused has argued that accused is falsely implicated in this case a no raid was conducted at his premises. The company failed to bring any incriminating material against him.
During cross examination PW-2 admitted that police official were with the team at the time of inspection. There was no photograph of the pole from which the theft was being committed. The common service cable was of the other consumer. One meter Page 4 CC No: 211/09 BYPL Vs. Md.Danish & Ors.
was also connected with this service cable. No meter number was mentioned in any of the documents. No inquiry was made about the theft from the registered consumer of this meter. The hindrance created at site was not captured in videography. None of the Pardanashin ladies were present in the videography. No public person were join as a witness during inspection.
He did not verify the ownership of the premises through documentary evidence. Accused was present at the site at the time of inspection though he has not been captured in videography. It was further submitted that there was no material evidence on record which connect the theft with accused. No independent person was joined at the time of inspection / seizure of case property. 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.
8. Per contra, counsel for company has argued that at the time of inspection i.e on 03.02.2009 a raid was conducted at premises of the accused persons at H.NO. 2144, 2 nd, 3rd Floor, Ahata Meer Bukhanri, Near Turkman Gate, (Pole No. DRG-A-780) Delhi with the officers of company and police officer of PS Chandni Mahal. During inspection, it was found that accused no.1 (Md.Danish) who is tenant of accused no. 2 (Md. Salim) using the supply directly by tapping the illegal wire from BSES common S/Cable. The total connected load was found as 18.389 KW/DX/DT. There was no meter / DG set found at site. Videography of theft was conducted by Parvesh of M/s. Arora Photo Studio. The material i.e single core PVC copper illegal wire qty 02, size 7/20 colour yellow, length 2 mtr (two Page 5 CC No: 211/09 BYPL Vs. Md.Danish & Ors.
RIS) approx. used for direct theft of electricity was seized by K.L.Kain (Sr. Manager Enf.) vide detailed seizure memo prepared at site. As per deposition of PW- 1 (K.L.Kain) who was member of the raiding team, the company has proved its case against the accused beyond reasonable doubt. Accordingly, accused no.1 (Md.Danish) is liable to be convicted in this case.
9. I have gone through the ocular / documentary evidence adduced on record and arguments advanced at bar by counsel for parties.
10. The name of accused Mohd. Danish T/o.
Mohd. Salim is given in the inspection report as the user of the electricity. In order to connect the accused with the offence reliable evidence is required to be led by the company which could show that the accused was connected with the premises in which the theft was being committed. It was also not specified as to which member of the team removed the material or prepared the seizure memo. No independent person was joined at the time of inspection/ seizure of case property. No documents regarding ownership was filed on record. Failure to make inquiry in this respect puts shadow on the case of company.
11. As per judgment of Hon'ble High Court in 2012 (4) JCC 2713 titled as BSES Rajdhani Power Ltd. Vs. Sunheri & Ors., it is mandatory on the part of company to examine the videograher. In the present case Parvesh from M/s. Arora Studio who recorded the videography was not examined by company.
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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 certificate U/S 65 B is required to be produced in evidence in the court. The CD is an electronic record so there is no escape from the requirement of proving it in accordance with law as the maker of the video was not examined.
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 05.05.2009 after about 3 month 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 complaint does not make the complainant's case improbable when such delay is properly explained. However, unexplained delay in lodging the complaint is always fatal to the prosecution case. (Sahib Singh Vs. State of Haryana AIR 1997 SC 3247).
13. As per Regulation 52 (ix) of Delhi Electricity Supply Code and Performance Standards Regulations 2007 "the report shall be signed by the Authorized Officer and each member of the inspecting team". Infact four officers are mentioned in the complaint whereas only two members are signatory to the inspection report. The member of raiding team Sh. Krishan Kumar and Surender Page 7 CC No: 211/09 BYPL Vs. Md.Danish & Ors.
Kumar (both lineman) had not signed on the inspection report except seizure memo. The non signing of the inspection report by the abovesaid member of raiding team on inspection report casts doubt on this report.
The company failed to examine Sh. Jitender Raghav (DET), Sh. Krishan Kumar and Surender Kumar (both lineman) who were member of the raiding team and cited in the list of witnesses. No explanation has been assigned for the non examination of these witnesses. So adverse inference has to be drawn against the company. The company did not prove the ownership of property through documentary evidence.
14. 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 to 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.
15. 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 Page 8 CC No: 211/09 BYPL Vs. Md.Danish & Ors.
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 to take further help of police for proper verification of the occupant / accused thereby violating the aforesaid regulation. Even the police officials who had joined the raid were not examined as witnesses. This transpires that company was not serious in prosecuting the case.
16. A composite reading of section 135 Electricity Act and notification dated 12.09.2007 specifies that there has to be two officers for different proceedings in an inspection and this plurality shall lend credibility to the inspection. In the present case the work of inspection and seizure has been completed by K.L.Kain PW-1. Although the same is not illegal in case when a sudden information is received for theft of electricity and a raid is to be organized immediately. But when an inspection is carried out in pursuance of a mass raid, then the team is required to be constituted as per the regulations as per the aforesaid notification.
17. First of all the complaint is not proved by its author. 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 Page 9 CC No: 211/09 BYPL Vs. Md.Danish & Ors.
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 was cited as a witness in the complaint. However he was not examined in the court either, so the complaint Ex. CW-1/B remains unproved on record.
18. No signature of any public witness were obtained on the inspection report. The raiding team neither checked the identify of the persons / ladies present at site at the time of inspection nor they were made as a witness. It was also not proved by the company as to what action was taken by the police officials who were with the team itself when persons present at site did not sign the reports and also did allow the members of raiding team to paste the reports at site. There is no material evidence on record which connect the theft with the accused. No independent person was joined at the time of inspection. In a criminal case, prosecution has to prove the guilt of the accused beyond reasonable doubt to secure his conviction. 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-1 has material contradictions which are already observed in the foregoing paras. His testimony remains uncorroborated by any independent evidence.
No independent person was joined at the time of seizure of case property which was incumbent on their part to prove the seizure of the property. The company failed to comply Section 135 Page 10 CC No: 211/09 BYPL Vs. Md.Danish & Ors.
(3) & (4) of Electricity Act in respect to search and seizure of case property. 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. Reliance is placed on 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.
19. The main question in this case is whether company has been able to prove beyond reasonable doubt that accused was the consumer of electricity at the time of alleged inspection. It is on record that the company did not procure the document pertaining to occupancy or the ownership of the inspected premises. No independent witness was examined to prove the occupancy of premises by accused otherwise. The consumer from whose service line the theft was committed was not examined. The preparation of documents / seizure of case property has not been captured in videography. The company did not inquire as to how many meters were installed at the premises in question. The company failed to find any link between the inspected premises and the occupier. They also did not collect the documents which could show that accused was the user / owner of the subject premises. It was not proved as to who prepared the site plan and in the absence of the same, company has failed to prove the mode and manner of theft.
20. A special Act created always have special Page 11 CC No: 211/09 BYPL Vs. Md.Danish & Ors.
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.
21. Keeping in view the facts and circumstances, the company has failed to prove its case against the accused no.1 (Md. Danish) beyond reasonable doubt, he is accordingly acquitted. Bail bond of the accused is canceled and surety is 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 19.01.2007 be released by the company after expiry of period of appeal.
Case be retrieved as and when accused no.2 (Md.Salim) is brought or produced before the court u/s 299 CrPC.
Let copy of this judgment be sent to Additional / Deputy Commissioner of Police (Central) for necessary action.
File be consigned to record room.
Dictated and announced
in open court (Arun Kumar Arya)
ASJ/Special Court (Elect.)
Tis Hazari/Delhi/29.08.2014
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CC No: 211/09
BYPL Vs. Md.Danish & Ors.
29.08.2014
Present : Sh.Jitender Shankar, Authorized representative for the
complainant company.
Sh. Parveen Yadav, Adv. for accused along with accused no.1 on bail.
Vide separate judgment announced today, accused no.1 (Md. Danish) is acquitted of the charges punishable U/S 135 & 151 of Electricity Act 2003. Bail bond of the accused is cancelled and surety is 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.
However, in terms of Section-437 (A) Cr.P.C.,accused no.1 is 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 is accepted.
Case be retrieved as and when accused no.
2 (Md.Salim) is brought or produced before the court u/s 299 CrPC. Let copy of this judgment be sent to Additional / Deputy Commissioner of Police (Central) for necessary action.File be consigned to record room.
Dictated and announced (Arun Kumar Arya)
in open court ASJ/Special Court (Elect.)
Tis Hazari/Delhi/29.08.2014
Page 13