Delhi District Court
Bypl vs . Inder on 1 November, 2014
CC No: 423/08
Police Station: Chandni Mahal
BYPL Vs. Inder
IN THE COURT OF SHRI ARUN KUMAR ARYA,
ADDITIONAL SESSIONS JUDGE, SPECIAL COURT
(ELECTRICITY), TIS HAZARI COURT, DELHI
CC No. 423/08
Unique case ID No: 02402R0852392008
BSES Yamuna Power Ltd.
Having its Registered office at
Shakti Kiran Building,
Karkardooma, Delhi110032
(Through its authorized representative
Sh. C. B. Sharma) ............ Complainant
Through : Sh. Jitender Shankar, Authorized
Representative along with ld. counsel for the
complainant company.
Vs.
Inder
S/o: Not Known
Add: 692, GF, Mohalla Chandani
Mahal, Darya Ganj, Delhi 110006
Through: Sh. Parveen Yadav, Adv. for accused
Date of Institution ............. 03.07.2008
Judgment reserved on .............. 27.10.2014
Date of Judgment ............. 01.11.2014
Final Order ............. Acquitted
Page 1 of 13
CC No: 423/08
Police Station: Chandni Mahal
BYPL Vs. Inder
JUDGMENT
1. The brief facts of the case are that on 08.01.2008, an inspection was carried out at 692, GF, Mohalla Chandani Mahal, Darya Ganj, Delhi (to be referred as "premises" hereinafter) by the officials of the complainant company (to be referred as "company" hereinafter) consisting of Sh. Jitender Kumar (AM), Sh. Lalit Sharma (E/T), Sh. Rakesh Ranjan and Sh. Devinder Singh (both lineman) which were allegedly to be used by accused Inder.
The accused was found indulging in direct theft of electricity by illegally directly tapping the BSES S/L through 3/25 SWG white coloured PVC copper wire of 1 meter length and all connected load of the premises was running directly with BSES system. No meter was found at site and accused was using the electricity for commercial purpose to the tune of 5.460 KW. Videography showing the irregularities were taken by Sh. Satender from M/S Arora Photo Studio. 3/22 SWG white coloured PVC copper wire of 1 meter length were seized. Accused refused to sign the inspection report. An assessment bill of Rs.1,76,032/ for theft of electricity was raised against the accused which remained unpaid.
2. Hence, the complaint under section 135 read with section 151 of the Electricity Act, 2003 (hereinafter referred to as "Act) against the accused was filed in this court praying that he be Page 2 of 13 CC No: 423/08 Police Station: Chandni Mahal BYPL Vs. Inder summoned, tried and punished as per law and for determining the civil liability of the accused as per provisions of Section 154 (5) of the Act.
3. After recording the pre summoning evidence of company, the accused was summoned for the offence U/S 135 of the Electricity Act 2003 by my ld. predecessor vide order dated 12.08.2008. 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 on 11.01.2010 to which accused pleaded not guilty and claimed trial.
4. Complainant in support of its case examined 2 witnesses namely PW - 1 Sh. Jitender Kumar and PW - 2 Sh. Rajeev Ranjan.
PW - 1 Sh. Jitender Kumar, deposed that on 08.01.2008 at about 03:20 PM, he along with Sh. Lalit Sharma (DET), Sh. Devender Singh and Sh. Rakesh Chanchal (both lineman) conducted a raid at the premises bearing no. 692, GF, Mohalla Chandani Mahal, Darya Ganj.
At the time of inspection, accused was found indulging in direct theft of electricity from other user's service line. No meter was found at site and a connected load to the tune of 5.460 KW for NX purpose was found installed in the inspection report.
The inspection report (Ex. CW2/B), load report (Ex. CW 2/C) and meter details report (Ex. CW 2/D) were prepared and bore his Page 3 of 13 CC No: 423/08 Police Station: Chandni Mahal BYPL Vs. Inder signature at point A. Videography qua the theft of electricity and connected load was taken upto possible extent by Sh. Satender and CD of the same is (Ex. CW 2/G). The material which was being used for theft of electricity was removed and seized vide seizure memo (Ex. CW 2/E) and bore his signature at point A. During cross examination, PW 1 admitted that team had not recorded any statement of any neighbor who were residing nearby the premises. 34 persons were working at the time of inspection, however, they did not tell their names. There was no indications/ name plate which shows that the premises was being used by the accused. No signature of any independent witness was made in any of the reports.
PW - 2 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. During cross examination of PW - 2 admitted that he deposed only on the basis of record. He was not the member of the raiding team. He has no personal knowledge of the inspection carried out by the member of the inspecting team or otherwise.
In his statement recorded U/S 313 Cr.P.C, accused has denied the allegations and he submits that he was falsely implicated in the present case by the officials of the company. No theft was Page 4 of 13 CC No: 423/08 Police Station: Chandni Mahal BYPL Vs. Inder conducted at the premises as no officer ever visited his premises for conducting the raid.
5. Ld. Counsel Sh. Parveen Yadav, Adv. for the accused has argued that accused is falsely implicated in this case and there is no incriminating evidence against him. He submitted that no inspection was carried out at the premises as alleged, no documents like inspection report, load report, seizure memo etc. were prepared at the spot. Photographer Sh. Satender was not examined by company. Other user's details were not mentioned by the company in the reports as well as evidence adduced on record. DT wire which were connected to the switch board was not seized.
Counsel for the accused argued that entire case of the company was based on the hearsay evidence. Neighbor / public persons were not made as a witness in inspection report as well as at the time of seizing of material evidence. Company has not made the owner Sh. Sharafat as an accused. It was requested that company had failed to prove its case on all counts so, accused was entitled to be acquitted in this case.
6. Per contra, counsel for complainant has argued that accused was indulging in direct theft of electricity by illegally directly tapping the BSES S/L through two 3/25 SWG white coloured PVC copper wire of 1 meter length and all connected load of the premises Page 5 of 13 CC No: 423/08 Police Station: Chandni Mahal BYPL Vs. Inder was running directly with BSES system. Accused used the load to the tune of 5.460 KW for commercial purpose. Necessary photographs and visual footage of the connected load and direct theft was taken by Sh. Satender.
As per deposition of complainant witnesses, the company has been able to prove its case against the accused beyond reasonable doubt. Accordingly, accused is liable to be convicted in this case.
7. I have gone through the ocular / documentary evidence adduced on record and arguments advanced at bar by counsel for parties.
The name of accused is given in the inspection report as the user of the electricity. In order to prove the guilt of accused, the company is required to prove the facts as under:
(a) Whether the premises were inspected by the officials of the company on 08.01.2008.
(b) Whether the theft of electricity was going on at the time of inspection.
(c) Whether accused was occupying the inspected premises at the time inspection.
The company failed to examine Sh. Lalit Sharma, Sh. Rakesh Ranjan, Sh. Devinder Singh and Sh. Satender, who were the Page 6 of 13 CC No: 423/08 Police Station: Chandni Mahal BYPL Vs. Inder member of the raiding team. No explanation has been assigned for the non examination of these witnesses.
As per inspection report Ex. CW 2/B it is clearly mentioned that CISF and Delhi Police (Police Station Chandni Mahal) were with the team and this facts was neither mentioned in the complaint nor by the PW 1 Sh. Jitender Kumar in his examination - in
- chief. None of the police officials were examined by the company to substantiate their case.
As per complaint it is mentioned that accused Inder was the tenant of Sharafat, but he was not examined to prove the case against the accused. Company did not even collect the documents of tenancy which could show that accused was the user or tenant in the premises.
As per pre summoning evidence and complaint, it is contented that accused was using the electricity through BSES service line, however, as per examination - in - chief of PW 1 and as per inspection report, it is mentioned that theft was being committed by the accused through other user's service line. If the accused using the electricity through other's user service line, then why he was not made as a witness in this case.
No independent person was joined at the time of seizure of the case property. Police personnels were also not made as Page 7 of 13 CC No: 423/08 Police Station: Chandni Mahal BYPL Vs. Inder witnesses by the company. 3 - 4 persons were working at the time of inspection, but company has also not made them as a witness to prove their case against the accused. 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, the accused was held to be rightly acquitted by the trial court.
The inspection report (Ex. CW 2/B) states the user as Inder ("as stated") but it does not specify as to who told them the name of the accused whether it was accused or somebody else. The representative were not examined by company in the court and no investigation was carried out by police in this respect. No inquiry in this respect was conducted by the company before the filing of the complaint. It is on record that the company did not procure the document pertaining to occupancy or the ownership or tenancy of the premises. No independent witness was examined to prove the occupancy of premises by accused otherwise. Reliance is placed on the recent 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 held to be rightly acquitted by trial court in aforesaid facts.
The company was under obligation to prove as to who Page 8 of 13 CC No: 423/08 Police Station: Chandni Mahal BYPL Vs. Inder was the actual possession of the premises at the time of inspection and same was not done. So, as per the 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 does not fall within the ambit of "WHOEVER" as enumerated U/S 135 of the Electricity Act, 2003.
As per reports prepared at site at the column of signature of consumer it is mentioned that "refused to sign" and in the report it was also mentioned that police officials were with the team, it is very surprising when team were with the police, then how a person who was present as per member of the raiding team refused to sign the report in the presence of police.
Site plan prepared by the member of the raiding team was required to be proved specifically however the same was not done. The company was under obligation to prove this site plan to specify the exact location of the premises.
8. Photographs were taken by one Sh. Satender, who was the member of the raiding team and also cited in the list of witnesses 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 was held to be fatal to the case of the company. Page 9 of 13
CC No: 423/08 Police Station: Chandni Mahal BYPL Vs. Inder The Compact disc (Ex. CW2/G) 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 of Delhi.
9. 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 03.07.2008 after approximately 7 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's case improbable when such delay is properly explained. However, delay in lodging the complaint is always fatal to prosecution case (Sahib Singh Vs. State of Haryana AIR 1997 SC Page 10 of 13 CC No: 423/08 Police Station: Chandni Mahal BYPL Vs. Inder 3247).
10. 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.
11. 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 to take the police help for proper verification of the occupant / accused thereby violating the aforesaid regulation. Even the police officials Page 11 of 13 CC No: 423/08 Police Station: Chandni Mahal BYPL Vs. Inder who had joined the raid were not examined as witnesses.
12. 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 this complaint was not cited as a witness in the complaint. He was not examined in the court either, so the complaint Ex. CW 1/B remains unproved on record.
13. 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 Page 12 of 13 CC No: 423/08 Police Station: Chandni Mahal BYPL Vs. Inder 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.
14. In the present case, company has not proved his case by positive evidence as the testimony of PW - 1 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.
In view of the foregoing reasons, company has failed to prove its case against the accused Inder 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 08.01.2008 be released by the company after expiry of period of appeal.
File be consigned to record room.
Announced in open court (Arun Kumar Arya)
ASJ/Special Court (Elect.)
Tis Hazari/Delhi/01.11.2014
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