Delhi District Court
Bypl vs . Mukesh Garg on 3 March, 2015
CC No.745/08
BYPL Vs. Mukesh Garg
IN THE COURT OF SHRI ARUN KUMAR ARYA,
ADDITIONAL SESSIONS JUDGE, SPECIAL COURT
(ELECTRICITY), TIS HAZARI COURT, DELHI
CC No. 745/08
Unique case ID No.02402R0083442009
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.
Mukesh Garg
329, Main Faiz Road,
Karol Bagh, New Delhi ................ Accused
Through: Sh.Amit Vohra , Adv. for accused
Date of Institution : 17.11.2008
Judgment reserved on : 25.02.2015
Date of Judgment : 03.03.2015
Final Order : Acquittal
JUDGMENT
1. As per complaint, on 11.09.2008 at 02.25 pm at the direction of Sh.M.M.S.Pachauri (Sr.Manager), the team comprising of him, Sh.R.K. Upadhya (AM), Sh.Man Singh (Tr.Eng.)., Sh.Mohan Lal and Umesh Kumar (both lineman) had conducted a raid at premises no. 329, Main Faiz Road, Karol Bagh, Delhi. At the time of inspection, no meter was found installed at site and accused was found indulging in direct theft from BSES LT mains through 2x10 mm Page 1 CC No.745/08 BYPL Vs. Mukesh Garg sqr PVC cable by illegal tapping the switch board which was further connected to load of the premises for commercial purpose. The photographs and visual footage of the inspection was captured by member of raiding team. The total connected load of 3.260 KW/NX/ DT assessed by the inspection team was illegally used by the accused for commercial purpose. The illegal material i.e one piece service cable 2 core 2x10 black measuring 5 meter of black colour, one MCB 32 amp DP make and one wooden board with one switch of 5 amp. were seized vide seizure memo Ex.CW-.2/C prepared at site.
The accused was booked for the offence of direct theft of electricity. Subsequently, theft assessment bill for sum of Rs. 1,23,464/- 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 329, Main Faiz Road, Karol Bagh, 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 12.01.2009 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 Page 2 CC No.745/08 BYPL Vs. Mukesh Garg 07.05.2010 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), PW-2 Sh.M.M.S.Pachauri and PW-3 Sh. R.K. Upadhyay (both Sr.Manager). Accused examined himself as DW- 1 in his defence.
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. M.M.S. Pachauri, deposed that on 11.09.2008, he was posted as a Senior Manager with the company and on the said date at about 2:25pm, a team comprising of him, Sh. R.K. Upadhayay (Assistant Manager), Sh. Maan Singh (Graduate Engineer Trainee), Sh. Umesh Kumar and Sh. Mohan Lal (both Line Man) had conducted a raid at the premises bearing no.329, main Faiz Road, Karol Bagh, Delhi. At the time of inspection they found that accused was indulging in direct theft of electricity by means of illegal wire tapping from BSES Yamuna Power Ltd LT (Low Transmission Line) mains. On his instructions, the member of the raiding team took the photographs of the connected load as well as mode of theft by digital camera. The print of said photographs are already Ex.CW-2/D (colly), and their compact disc already Ex.CW-2/D1. The inspection report, load report and seizure memo were prepared at site and same were already Ex.CW-2/A to CW-2/C bearing his signatures at point "A". He also prepared meter report Ex. PW-2/A. The wires, wooden board and MCB used for tapping the Page 3 CC No.745/08 BYPL Vs. Mukesh Garg electricity illegally were seized on his instructions and sealed in a gunny bag with the seal of M.M.S. The gunny bag contains the wooden board, MCB and one black colour (two core) wire and one yellow coloured (two core) wire along with the copy of seizure memo which was prepared at the site on that day which is Ex. CW 2/C. The case property was Ex. P1 (colly).
PW-3 Sh. R.K.Upadhyay deposed on the same lines of PW-2.
DW-1 Sh. Mukesh Garg deposed that he has no concern with property bearing no. XVI/326-329, 352-355, in Block-BD, Faiz Road, Karol Bagh, New Delhi, as same was sold by him vide registered sale deed dated 15.02.2006 to Smt. Anita Bajaj. Certified copy of the same was Ex.DW-1/A.
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. He stated that he had already sold the premises in question to one Anita Bajaj in the year 2006.
6. Sh. Amit Vohra, Adv. for the accused had argued that accused was falsely implicated in this case and company failed to bring any incriminating material against him.
During cross examination, both PW-2 and PW-3 admitted that they did not inquire as to the ownership of the premises from the neighborers or accused either at the time of inspection of the premises or before filing of present complaint. The labours present at premises disclosed that the property was owned by Mukesh Garg, however, the team did not record the statement of any of the laborers Page 4 CC No.745/08 BYPL Vs. Mukesh Garg present in the premises. As per them accused Mukesh Garg was not present during the inspection. He did not inquire as to whether Anita Bajaj was the owner of the premises since 15.02.2006.
The signatures of Mohan Lal and Umesh Kumar (both lineman) were not taken 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 when he refused to sign the reports. 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 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 of electricity by illegally tapping from BSES LT mains through 2x10 mm sqr PVC cable by illegal tapping with switch board which was further connected to load of the premises for commercial purpose. The total connected load of 3.260 KW/NX/DT assessed by the inspection team was illegally used for commercial purpose. The material i.e one piece service cable 2 core 2x10 black measuring 5 meter of black colour, one MCB 32 amp DP make and one wooden board with switches 5 amp. were seized vide seizure memo Ex.CW-2/C. The photographs and visual footage of the inspection was captured by member of raiding team. The Page 5 CC No.745/08 BYPL Vs. Mukesh Garg 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.
DW-1 had already filed the certified copy of the sale deed to show that the property was already sold. The gunny bag contained the wooden board, MCB and one black coloured (two core) wire and one yellow coloured (two core) wire, however, the yellow colour wire was not mentioned in complaint or seizure memo prepared at the site Ex. CW 2/C. PW-2 and PW-3 admitted in cross that accused Mukesh Garg was not present during the inspection, however, as per complaint they offered the documents to accused but he refused. At one point Pw-2 admitted that when team reached the spot Mukesh Garg left the spot after seeing them and another point admitted that they did not recognize the Mukesh Garg prior to the inspection.
The company failed to examine Sh.Man Singh (Tr.Engg.), Mohan Lal and Umesh Kumar (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 accused was rightly acquitted by the trial court as Page 6 CC No.745/08 BYPL Vs. Mukesh Garg 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 Mukesh Garg ("as stated"), however, it was not specified as to who disclosed the name of accused. The persons of the surrounding area who disclosed the name of accused were not named or examined. 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 accused ''Mukesh Garg'' 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.
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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 member of raiding team who captured photographs / videography.
The Compact disc (Ex.CW-2/D1) 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 17.11.2008 about after 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 Page 8 CC No.745/08 BYPL Vs. Mukesh Garg 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.
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) 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 Page 9 CC No.745/08 BYPL Vs. Mukesh Garg 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. 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 Page 10 CC No.745/08 BYPL Vs. Mukesh Garg 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 11.09.2008 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/03.03.2015
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CC No.745/08
BYPL Vs. Mukesh Garg
03.03.2015
Present: Sh. Jitender Shankar, Authorized Representative for the
complainant company.
Sh.Amit Vohra, 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/03.03.2015
Page 12