Delhi District Court
Bypl vs . Sanju Parewa on 13 November, 2014
CC No: 254/08
Police Station: DBG Road
BYPL Vs. Sanju Parewa
IN THE COURT OF SHRI ARUN KUMAR ARYA,
ADDITIONAL SESSIONS JUDGE, SPECIAL COURT
(ELECTRICITY), TIS HAZARI COURT, DELHI
CC No. 254/08
Unique case ID No: 02402R0026272009
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.
Sanju Parewa (Dishonest User)
S/o: Sh. Gulab Rai
Add: 6216/1, IIIrd & IV floor,
Block No. 1, Dev Nagar,
Karol Bagh, New Delhi.
Through: Sh. Parveen Yadav, Adv. for accused
Date of Institution ............. 27.03.2008
Judgment reserved on .............. 03.11.2014
Date of Judgment ............. 13.11.2014
Final Order ............. Acquitted
JUDGMENT
1. The brief facts of the case are that on 18.12.2007, an Page 1 of 14 CC No: 254/08 Police Station: DBG Road BYPL Vs. Sanju Parewa inspection was carried out by the officials of the complainant company (to be referred as "company" hereinafter) consisting of Sh. D. K. Arya and Sh. Likhi Ram (both AM), Sh. Suresh Kumar (Engr.) and Sh. Ashok Kumar (lineman) at the premises bearing no. 6216/1, IIIrd & IV floor, Block No. 1, Dev Nagar, Karol Bagh, New Delhi. (to be referred as "premises" hereinafter) which was allegedly to be used by accused Sanju Parewa.
The accused was found indulging in direct theft of electricity by illegally directly tapping another user's service line of rd th BYPL for industrial load at 3 and 4 floor through illegal wires. All connected load of the premises was running directly with BSES system. Accused was using the electricity for industrial purpose to the tune of 14.895 KW.
Necessary photographs and videography showing the irregularities were taken by member of the raiding team. Material could not be seized due to hindrance created by the user at site. Accused refused to sign the prepared report. An assessment bill of Rs. 4,76,052/ 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 summoning in this court praying that he Page 2 of 14 CC No: 254/08 Police Station: DBG Road BYPL Vs. Sanju Parewa be 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 17.07.2008. 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 07.11.2008 to which accused pleaded not guilty and claimed trial.
4. Complainant in support of its case examined 3 witnesses namely PW - 1 Sh. Rajeev Ranjan, PW - 2 Sh. Lekhi Ram and PW - 3 Sh. D. K. Arya.
PW - 1 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. PW - 2 Sh. Lekhi Ram, deposed that on 18.12.2007 at about 06:45 PM, he along with Sh. D. K. Arya, Sh. Suresh Kumar and Sh. Ashok Kumar at the premises bearing no. 6216/1, Block No. 1, Dev Nagar, Karol Bagh. At the time of inspection Accused was found indulging in direct theft of electricity through illegal wire by tapping other user's service line. Connected load was used by the accused for industrial purpose at 3rd and 4th floor for single shift. Page 3 of 14
CC No: 254/08 Police Station: DBG Road BYPL Vs. Sanju Parewa 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 signature at point A. Team took the photographs (Ex. CW 2/G) and CD containing the photographs of the accused (Ex. CW 2/H). Photograph of accused is Ex. PW 2/A. Due to hindrance created by user of the premises the illegal material which was used for theft of electricity could not be seized at site. Accused also refused to sign the reports and did not allow the team to paste it at the premises.
PW - 3 Sh. D. K. Rai, deposed that on 18.12.2007 at about 06:45 PM, he along with Sh. Lekhi Ram, Sh. Suresh Kumar and Sh. Ashok Kumar at the premises bearing no. 6216/1, Block No. 1, Dev Nagar, Karol Bagh and deposed on lines of PW 1 Sh. Leikhi Ram.
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.
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. Other user's details were not mentioned by the company in the Page 4 of 14 CC No: 254/08 Police Station: DBG Road BYPL Vs. Sanju Parewa reports as well as evidence adduced on record.
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. The inspecting team has not seized any material from the site which was used for the theft of electricity which was mandatory on the part of inspecting team. 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 company has argued that accused was indulging in direct theft of electricity by illegally directly rd tapping another user's service line of BYPL for industrial load at 3 th and 4 floor through illegal wires. All connected load of the premises was running directly with BSES system. Accused used the load to the tune of 14.895 KW for industrial purpose. Necessary photographs and videography showing the irregularities were also taken by the member of the raiding team.
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 Page 5 of 14 CC No: 254/08 Police Station: DBG Road BYPL Vs. Sanju Parewa 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 18.12.2007.
(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. Suresh Kumar and Sh. Ashok Kumar, who were the 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 team consisted of enforcement team along with Delhi Police and lady security guard were with the team and this facts was neither mentioned in the complaint nor by the PW - 2 Sh. Likhi Ram and PW - 3 Sh. D. K. Arya in their examination - in - chief. None of the police officials were examined by the company to substantiate Page 6 of 14 CC No: 254/08 Police Station: DBG Road BYPL Vs. Sanju Parewa their case.
The inspection report (Ex. CW 2/B) states the user as Sanju Parewa ("as stated") but it does not specify as to who told them the name of the accused. The workers who met at site were not examined by company in the court and 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 of the premises. No independent witness was examined to prove the occupancy of premises by accused. 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 the same was held to be fatal the case.
It was alleged by the company that accused was using the electricity illegally by directly tapping another user's service line, however, the other user was not examined in court by company.
As per inspection report team also consisted of delhi police and lady security guard. Police personnels were also not made as witnesses by the company. Witnesses i.e. PW 2 and PW 3 admitted that workers were also present along with accused 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 Page 7 of 14 CC No: 254/08 Police Station: DBG Road BYPL Vs. Sanju Parewa 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 company was under obligation to prove as to who was in actual possession of the premises at the time of inspection and same was not done. In the absence of such proof the accused did not fall within the ambit of "WHOEVER DISHONESTLY" as enumerated U/S 135 of the Electricity Act, 2003 in view of the recent judgment of Hon'ble High Court of Delhi in Crl. A. No. 816/2010 dated 22.03.2012 titled as BSES Rajdhani Power Ltd Vs. Ruggan.
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 at the time of inspection as per the allegation of member of the raiding team refused to sign the report in the presence of police. Despite this fact no FIR was lodged with the police against the accused.
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 Page 8 of 14 CC No: 254/08 Police Station: DBG Road BYPL Vs. Sanju Parewa the mode of theft.
Admittedly, the inspecting team has not seized any material from the site which was used for the theft of electricity which was mandatory on the part of inspecting team. As per complaint and deposition of company's witnesses photographs were taken at site but the accused.
During cross examination, PW 2 Sh. Likhi Ram admittedin his cross examination that meter which was installed at the premises was in the name of other person, however, no such record was filed on record.
Police officials were with the team. He did not remember the name of the police officials which were accompanied with the team. He cannot tell the name of the worker who told him about the ownership of the premises. No photographs were filed on record which shows that workers were doing the work. Signature of the police officials were not obtained on any document. Team had not pasted any documents at site.
PW 3 Sh. D. K. Arya admitted in his cross examination that he had not given any written application in the concerned police station regarding the conduction of the raid for police assistance. However, PW - 2 during his cross examination admitted that police officials were with the team and also this fact was mentioned in the Page 9 of 14 CC No: 254/08 Police Station: DBG Road BYPL Vs. Sanju Parewa inspection report making it clear contradiction in the statements of both witnesses.
Team had not mentioned the details of the user from whose service line the accused was tapping the electricity. He could not tell the name of owner of the entire premises. He had not taken rd th any documentary proof regarding the ownership of 3 and 4 floor from neighbors of premises in question. No public persons were made as a witness to the reports.
It was argued by the company that accused was present at the time of inspection and he was also shown in the photographs but company failed to prove the photographs and CD filed on record as who actual took the same at the spot was not examined by the company. It was also argued that illegal material was not seized from the site due to hindrance created by the user at site. It does not appeal to common sense and logic when they were allowed to take photographs then how the persons could resist the seizure of the illegal material and that too in the presence of police. The non seizure of material through which direct theft was being committing. 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 and non - seizure of the illegal material at site was held to be fatal to the case of the company. Page 10 of 14
CC No: 254/08 Police Station: DBG Road BYPL Vs. Sanju Parewa The Compact disc (Ex. CW2/H) 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.
8. 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 27.03.2008 after approximately 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'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 11 of 14 CC No: 254/08 Police Station: DBG Road BYPL Vs. Sanju Parewa 3247).
9. 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.
10. 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 12 of 14 CC No: 254/08 Police Station: DBG Road BYPL Vs. Sanju Parewa who had joined the raid were not examined as witnesses.
11. 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.
12. 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 13 of 14 CC No: 254/08 Police Station: DBG Road BYPL Vs. Sanju Parewa 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.
13. In the present case, company has not proved his case by positive evidence as the testimony of PW - 2 and PW - 3 have 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 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 18.12.2007 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/13.11.2014
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