Delhi District Court
C.C. No. 38/07 Bypl vs . Ramesh Karal Page 1 Of 10 on 18 December, 2012
IN THE COURT OF SH. ARUN KUMAR ARYA
ADDITIONAL SESSIONS JUDGE, SPECIAL COURT, (ELECTRICITY),
TIS HAZARI COURT, DELHI
C.C. No. 38/07
Unique Case ID No.02402R0848042008
BSES Yamuna Power Ltd.
having its registered office at:
Shakti Kiran Building, Karkardooma,
Delhi110032
Acting through its Authorized Officer,
Shri Jitender Shankar
.........Complainant
Versus
Ramesh Karal
House no. 1, Barber Shop, Udaseen
Ashram, Aram Bagh,
Pahar Ganj, New Delhi.
........Accused
Date of Institution : 31.03.2006
Date of Judgment : 18.12.2012
J U D G M E N T
1. Briefly the facts of the case are that the complainant is a C.C. No. 38/07 BYPL Vs. Ramesh Karal Page 1 of 10 company incorporated under the Companies Act, 1956 (to be referred as "company" hereinafter) having its registered office at Shakti Kiran Building, Karkardooma, Delhi 110092 and having its branch office at different places in Delhi. The company is the licensee for supply of electricity in major parts of Delhi including the area of the accused. Sh. Jitender Shankar was the Authorized Officer to represent the company.
2. On 25.01.2006 at about 05.05 PM a raiding team comprising of (i) Sh. S.K. Gajbhiye (Manager), (ii) Sh. K. D. Sharma (Assistant Manager) (iii) Sh. Gopal Singh & Sanjeev Kumar (both JE),
(iv) Sh. Kadeem Ahmed (GET), (v). Sh. Sunil Sharma (ET) and Sh. Kirpal Singh and Sh. Munna Lal (both LM) conducted an inspection / raid at R/o. House no. 1, Barber Shop, Udaseen Ashram, Aram Bagh, Pahar Ganj, New Delhi. During the course of inspection the accused / consumer was found dishonestly indulging in direct theft of electricity from BSES service cable through illegal red coloured wires. No meter was found installed at the premises and the entire load was running directly from the BYPL system. A load report was also prepared at the time of inspection. The total connected load which was illegally used by the accused for commercial purpose was assessed by the inspection team as 0.530 KW.
C.C. No. 38/07 BYPL Vs. Ramesh Karal Page 2 of 10
3. The officials of the complainant company took photographs (Ex. CW 2 /D colly) and prepared video / compact disc (Ex. CW 2 / D1) of the entire connected load by digital camera, and the same was filed with the complaint. It is alleged that during the course of inspection Sh. S.K. Gajbhiye has seized the evidence material from the spot. Subsequently, theft assessment bill in the sum of Rs. 25,164/ was raised against the accused as he was found as user of the electricity. Hence, the present complaint was filed against the accused.
4. The accused was summoned U/s 135 of the Electricity Act 2003 by ld. predecessor of this Court by order dated 09.06.2006 after recording the pre - summoning evidence. A notice u/s 251 Cr.PC was also framed against accused by ld. predecessor of this Court by order dated 19.05.2010 to which accused pleaded not guilty and claimed trial.
5. Complainant in support of its case examined 2 witnesses namely PW1 Sh. Rajeev Ranjan (Legal Officer) and PW2 Sh. Sanjeev Kumar (Trainee Engineer).
PW 1 Sh. Rajeev Ranjan deposed that the present complaint Ex.CW1/A was filed by Sh. Jitender Shankar. He was authorized vide letter of authority in his favour Ex. PW1/A. On the basis C.C. No. 38/07 BYPL Vs. Ramesh Karal Page 3 of 10 of inspection report and load report, enforcement department of the company prepared the theft bill for an amount of Rs. 25,164/ which is Ex. CW1/C. PW2 Sh. Sanjeev Kumar, Trainee Engineer of company deposed that on 25.01.2006 at about 05:00 pm a raiding team comprising of himself,(i) Sh. S.K. Gajbhiye (Manager), (ii) Sh. K. D. Sharma (Assistant Manager) (iii) Sh. Gopal Singh & Sanjeev Kumar (both JE), (iv) Sh. Kadeem Ahmed (GET), (v). Sh. Sunil Sharma (ET) and Sh. Kirpal Singh and Sh. Munna Lal (both LM) conducted an inspection / raid at House no. 1, Barber Shop, Udaseen Ashram, Aram Bagh, Pahar Ganj, New Delhi. During the course of inspection the accused was found indulging in direct theft of electricity from the service line of other user for the purpose of running a barber shop and no meter was found installed at site. The total connected load which was illegally used by the accused was assessed by the inspection team as 0.53 KW. The meter detail report along with inspection report (Ex.CW2/A colly) and load report (Ex.CW2/B) were prepared by member of the raiding team at the time of inspection.
It is alleged that during the course of inspection, on the C.C. No. 38/07 BYPL Vs. Ramesh Karal Page 4 of 10 instructions of Sh. S.K. Gajbhiye the evidence material was seized at the site. Subsequently, theft assessment bill in the sum of Rs.25,164/ was raised against the accused as he was found as user of the electricity. The photographs (already Ex. CW 2/D) and compact disc (CD) (already Ex.CW2/D1) was prepared by the member of the raiding team showing the irregularities and connected load found at the spot.
6. In his statement recorded u/s 313 Cr.PC, accused has denied the allegation and has stated that he has been falsely implicated in the present case. He was never involved in any kind of theft of electricity as alleged by company and the premises was under the possession of Mohd. Yameen, who was the tenant in that premises. He was involved in the present case at the instance of Mohd. Yameen.
7. I have perused the evidence adduced on record and considered the arguments advanced at bar.
8. Ld. Counsel for the accused has argued that the case is purely based on hearsay evidence. He further submit that there are no photographs on record showing the members of the raiding team preparing / seizing the material at the site. He also submits that accused was not residing at the premises in question and Mohd. Yameen was using the premises till date who was not made as an C.C. No. 38/07 BYPL Vs. Ramesh Karal Page 5 of 10 accused in this case.
Ld. counsel for accused further submits that a decree was passed by the court of Ms. Ruchi Aggarwal, Civil Judge, Tis Hazari Courts, Delhi in favour of accused in which it was clearly held that the premises in question was being used by the tenant Mohd. Yameen only at the time of inspection. He further urged that there is no evidence to show that the accused was the user of the premises in question. Public persons who were present at the site neither were not associated as witnesses nor their particulars were disclosed by the company. No documents pertaining to ownership or tenancy was taken by the members of the raiding team. No notice or intimation was sent to the accused regarding the theft of electricity in the premises in question.
He further contented that the company had not examined the witness Sh. S.K. Gajhbiye who actually seized the material at site and other members who joined the inspection as cited in the list of witnesses by the company.
9. Per contra, Counsel for complainant has argued that accused was found indulging in direct theft of electricity from BYPL service cable through illegal red colour wire. He further argued that as per deposition of PW 2 Sh. Sanjeev Kumar, the company has proved its C.C. No. 38/07 BYPL Vs. Ramesh Karal Page 6 of 10 case against the accused beyond reasonable doubt. Accordingly, accused is liable to be convicted in this case.
10. I have considered the arguments advanced at bar and oral and documentary evidence adduced on record.
11. The principles of fastening criminal liability is different than that of civil liability in case the use of electricity. The language of Section 135 of Electricity Act even if considered as it is, it refers to whoever and the same would mean a person who is involved in the commission of offence. It is true that the essential purpose of the enactment of the Act and more particularly Section 135 of the Act is to book the offenders, who are committing theft of electricity, but there cannot be any intention of the legislature to punish the persons other than the offenders.
12. Witness Sh. S.K. Gajbhiye and other witnesses namely Sh. K.D. Sharma, Sh. Gopal Singh, Sh. Kadeem Ahmed, Sh. Sunil Sharma, Sh. Kirpal Singh and Sh. Munna Lal as cited in the list of witnesses filed by company were not examined by the company to prove its case despite sufficient opportunities. Failure to make inquiry in this respect to the fact that who is the owner of the premises makes the case of the prosecution more doubtful.
C.C. No. 38/07 BYPL Vs. Ramesh Karal Page 7 of 10 As per the decree and judgment of Ms. Ruchi Aggarwal, Civil Judge, Tis Hazari Court, Delhi, dated 27.04.2012 it was held that plaintiff is entitled to recovery of possession of suit property i.e. Shop No. 5, in property bearing no. 2 Ground Floor, Ram Bagh, Udaseen Ashram, Delhi. from Mohd. Yameen thereby holding him tenant and accused Ramesh Karal as owner. The original rent agreement dated 21.04.2005 signed between the parties was duly proved in the court. This fact clearly establishes that accused was not in a possession of the property inspected by the company on 25.01.2006. Mohd. Yameen has filed appeal against decree and judgment dated 27.04.2012. making it clear that accused was not in a possession of suit property at the time of inspection.
As per complaint the theft was being committed by the accused (Ramesh Karal) through the service line of BSES by illegal red colour wire but star witness of this case i.e. PW 2 Sh. Sanjeev Kumar deposed that theft was being committed from the service line of other user. His different version in respect to the manner of theft of electricity in evidence and complaint makes the prosecution case doubtful. The testimony of PW2 remained uncorroborated by any other member of the raiding team. Although the conviction can be solely based on the C.C. No. 38/07 BYPL Vs. Ramesh Karal Page 8 of 10 qualitative testimony of single witness, but where his testimony remain untrustworthy on material particulars then this becomes highly unsafe to rely on such evidence. This witness did not tell the name of the person who was present at the spot at the time of inspection or whether accused was present at the spot at the time of inspection. No efforts was made to know the name of the owner of the building. The owner of the building was not questioned to ascertain the occupation of the premises which was inspected by him. He came to know about the name of the accused person from the persons gathered at the spot. His failure to verify as to who was in actual possession makes his evidence simply as "hearsay evidence". Any member of public present at the spot or shown in the photograph could have been made as a witness in this case to substantiate the factum of theft of electricity.
13. In order to connect the accused the company is required establish on record beyond reasonable doubt that the accused was the user and was dishonestly resorting to theft of electricity. The burden to prove the case never shifts and remains on the complaint. The manner of working of inspecting team is far below the optimum level which is expected from them. After the raid was conducted by them, no investigation or verification was done by the inspecting team on the C.C. No. 38/07 BYPL Vs. Ramesh Karal Page 9 of 10 factum of ownership or possession of the inspected property before filing the complaint. This makes manifestly clear that the criminal complaints for theft of electricity are being filed in a cursory manner without due diligence and concrete evidence which is required for the conviction of an accused. The testimony of PW 2 is not consistant as to the manner of electricity and in consistency is ground to discard his testimony. The company has miserably failed to prove that accused was the user of electricity on the date of inspection. In view of the abovesaid reasons accused stands acquitted in the present case.
Bail bond of the accused is canceled and surety is discharged. Amount, if any, deposited by the accused as a condition for bail be released by the company after expiry of period of appeal.
File be consigned to record room.
(Arun Kumar Arya) ASJ/Spl. Court (Elect) Tis Hazari/Delhi/18.12.2012 Announced in the open court C.C. No. 38/07 BYPL Vs. Ramesh Karal Page 10 of 10