Delhi District Court
Bypl vs . Moinuddin on 17 April, 2015
CC No.08/09
BYPL Vs. Moinuddin
IN THE COURT OF SHRI ARUN KUMAR ARYA,
ADDITIONAL SESSIONS JUDGE, SPECIAL COURT
(ELECTRICITY), TIS HAZARI COURT, DELHI
CC No. 09/08
Unique case ID No.02402R0043062009
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.
Moinuddin
2082, F/F.,
Kucha Nahar Khan,
Kucha Chalan, Daryaganj, Delhi ................ Accused
Through: Sh.Parveen Yadav, Adv. for accused
Date of Institution : 02.01.2009
Judgment reserved on : 08.04.2015
Date of Judgment : 17.04.2015
Final Order : Acquittal
JUDGMENT
1. The present complaint was filed by Sh.C.B. Sharma, Authorized Officer of company. Complaint u/sec.151 of the Electricity Act, 2003 (hereinafter called as 'the Act') has been filed by the complainant company (hereinafter called as 'company') against accused for offences punishable U/s 135 of the Act and also for determining the civil liability.
2. Briefly, on 17.09.2008 at 03.00 p.m. as per directions of DGM (Enforcement), Sh.D.K.Saini (Assistant Manager) Page 1 CC No.08/09 BYPL Vs. Moinuddin of the company conducted an inspection with a team comprising him, Sh.Lalit Sharma (DET), Sh.Dhanesh K.Sharma and Sh.Rajesh Kumar (lineman) at premises no. 2082, FF, Kucha Nahar Khan, Kucha Chelan, Daryaganj, Delhi. There was no meter at site. The accused was found to be the unlawful user of the electricity, and was directly tapping / drawing electricity from the neighbor's cable of BSES by private wires. These private wires fed the internal load of user. Photographs were taken by the member of raiding team. The accused did not allow the team to take photographs of connected load inside the room, thereafter the connected load was physically checked as 11.189 KW/DX/DT.
The illegal material i.e 2 core aluminum cable 2 x 10 mm sqr. one and half meter approx black colour and 2 PVC copper wire 7x20, 2 mtr, red colour 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. 1,64,138/- was raised against the accused. On the failure of accused to deposit the same, present complaint was filed against him.
3. The accused was summoned U/s 135 of the Electricity Act 2003 by my ld. predecessor vide order dated 09.02.2009 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 23.10.2009 to which he pleaded not guilty and claimed trial.
4. Complainant in support of its case examined two witnesses i.e. PW-1 Sh. Rajeev Ranjan (Authorized Representative) and PW-2 Sh.D.K.Saini (Manager).
Page 2 CC No.08/09 BYPL Vs. Moinuddin PW-1 Sh. Rajeev Ranjan deposed that the present complaint Ex.CW-1/A was filed by Sh.C.B.Sharma. He was authorized vide letter of authority in his favour Ex.CW-1/B. PW-2 Sh.D.K.Saini deposed that on 17.09.2008, he was posted as Assistant Manager Enforcement-I. On that day as per the directions of DGM Enforcement, a raid was conducted at the premises no. 2082, 1st floor, Kucha Nahar Khan, Kucha Chalan, Darya Ganj, Delhi by raiding team comprising him, Sh. Lalit Sharma (DET), Dhanesh Kumar Sharma and Sh. Rajesh Kumar (both Lineman). During the course of inspection, user Moinuddin was found indulging in direct theft of electricity by directly tapping the BYPL cable of his neighbor by private wires. No meter was found at site. The entire load was running directly on DT cable to the tune of 11.189 KW for domestic purpose (DX). After that they prepared inspection report, meter report, load report already Ex.CW2/A and 2/B (colly.) respectively which bore his signatures at point A. The team seized 2 core cable of black colour length about 1½ meter, two red colour PVC wires of length 1 meter each vide seizure memo already Ex.CW2/C. The photographs Ex.CW2/D (colly.) of illegal direct tapping wires were clicked at site in the presence of user and his wife, however, the accused did not allow to take photographs of load inside the premises and the same was physically checked. The CD of the said photographs was already Ex.CW2/D1. He correctly identified the case property as Ex. P1.
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 and no raid was conducted at his premises.
Page 3 CC No.08/09 BYPL Vs. Moinuddin
6. Sh.Parveen Yadav, Adv. for the accused had argued that accused was falsely implicated in this case and company failed to bring any incriminating evidence against him.
PW-2 admitted during cross examination that he did not remember, if he had conducted any other raid on 17.08.08 besides this raid. He met user at the time of inspection. He did not remember the name of neighbours whose service line was used for illegally tapping by the accused. The abovesaid neighbour was not joined as a witness in the present case. He could not recall the name of registered consumer of the meter shown in photograph Ex.CW2/D at mark B. He admitted that he booked the case of direct theft on the premises. The photograph A,C,D of Ex.CW2/D are of ground floor of the premises, however the raid was conducted at the first floor.
He did not remember whether he enquired from Saikh Vakil about this case in whose name the meter with K.No. 112021260202 was registered. He did not seize the meter of Saikh Vakil as the theft was going on with the service line of abovesaid electricity connection. He had not seen any ownership paper of accused and had not confirmed from any government authority regarding the ownership of premises even after the conclusion of inspection. The photographs A,C and D of Ex.CW2/D placed on record are pertain to outside of the ground floor of premises.
No list showing the Authorized officer has been placed on record. There was no meter at site at the time of inspection. No persons from public signed the seizure memo. 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 Page 4 CC No.08/09 BYPL Vs. Moinuddin that during inspection, no meter was found installed at site and accused was found indulging in direct theft of electricity from the neighbor's cable of BSES by private wires. These private wires never feeding the internal load of user through private wiring. Necessary photography was taken by the member of raiding team. The accused did not allow the team to take photographs of connected load inside the room, thereafter the connected load was physically checked as 11.189 KW/DX/DT. The illegal material i.e 2 core aluminum cable 2 x 10 mm sqr. one and half meter approx black colour and 2 PVC copper wire 7x20, 2 mtr, red colour were seized vide seizure memo Ex.CW-2/C. The accused was booked for offence of direct theft of electricity. As per deposition of PW-2 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.
The company 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 neighbor from whose service line the theft was going on was not examined as a witness. It was not specified as to who removed the wire.
The neighbor was not joined as a witness in the present case. PW-2 could not recall the name of registered consumer of the meter shown in photograph Ex.CW2/D at mark B. He admitted that he booked the case of direct theft on the premises. The photograph A,C,D of Ex.CW2/D were of the ground floor of the premises, whereas, the raid was conducted at the first floor. The photograph G was of 1st floor showing the inside area of premises, however it cannot Page 5 CC No.08/09 BYPL Vs. Moinuddin be assume that same pertains to the 1st floor of premises in question. He did not enquired in respect to the meter with K.No.112021260202. He did not seize the service line which was allegedly tapped for theft of electricity. As per complaint, the accused refused to sign the inspection reports, however, the said fact was not reported to the local police.
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. The company failed to prove the occupation of accused in the inspected premise.
The signatures of Rajesh Kumar and Dhanesh Kumar Sharma (both linemen) were not taken on inspection reports except seizure memo. The company failed to examine both the abovesaid linemen. 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.
9. The company did not procure the documents pertaining to occupancy or the ownership of the inspected premises.
Page 6 CC No.08/09 BYPL Vs. Moinuddin 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 '' Moinuddin'' 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 member of raiding team who conducted 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 Page 7 CC No.08/09 BYPL Vs. Moinuddin 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 02.01.2009 after about 4 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 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:-
Page 8 CC No.08/09 BYPL Vs. Moinuddin 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, Sh.Rajeev Ranjan was substituted to pursue this complaint who was deposed as PW-1. 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.
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.
Page 9 CC No.08/09 BYPL Vs. Moinuddin
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 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 17.01.2008 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/17.04.2015
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CC No.08/09
BYPL Vs. Moinuddin
17.04.2015
Present: Sh. Jitender Shankar, Authorized Representative for the
complainant company.
Sh.Parveen Yadav, 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/17.04.2015
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