Delhi District Court
Through : Sh. Jitender Shankar vs . on 22 April, 2015
IN THE COURT OF SHRI ARUN KUMAR ARYA,
ADDITIONAL SESSIONS JUDGE, SPECIAL COURT
(ELECTRICITY), TIS HAZARI COURT, DELHI
CC No. 130/08
Unique case ID No.02402R0060722009
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. Sh. Nilesh Kumar, Adv.
for the company.
Vs.
Raj Rani
1614, Gali Beriyan Wali
Himmat Garh, Sita Ram Bazar
New Delhi. ................ Accused
Through: Sh. Parveen Yadav, Adv. for accused.
Date of Institution : 30.01.2008
Judgment reserved on : 15.04.2015
Date of Judgment : 22.04.2015
Final Order : Acquitted
CC No: 130/08
Police Station: Darya Ganj
BYPL Vs. Raj Rani
Page 1 of 15
JUDGMENT
1. The case of the company, in brief, is that on 25.06.2007 at about 12:30 PM, an inspection was conducted by the local police of Police Station Hauz Quazi along with officers of the complainant company i.e. Sh. V. N. Tyagi (AM), Sh. Sanjeev Kumar (T. Engineer) and Sh. Rajender Singh (Lineman) at the premises bearing House No. T1614, Gali Beriyan Wali, Himmat Garh, Sita Ram Bazar, Delhi. (hereinafter to be referred as "premises").
During the inspection, no meter or DG set generator / inverter was found at site. Accused was using the electricity by illegally tapping the common service line / LV mains. The supply was being used for domestic purpose to the tune of 7.283 KW. Sh. Sunil from M/S Arora Photo Studio conducted videography at site. As per procedure, Sh. D. P. Singh (Manager, Enforcement) seized the illegal material i.e. (1) Illegal PVC Copper wire, 2 pieces of length 2.5m X 2 PCS, size 3/20 SWG, of red and yellow colour. (2) Illegal PVC copper wire, 2 piece of length 3MX2PCS, of size3/20 SWG, of black colour.
CC No: 130/08 Police Station: Darya Ganj BYPL Vs. Raj Rani Page 2 of 15 The accused was illegally, unauthorizedly and dishonestly using the electricity for the domestic purpose. An assessment theft bill of Rs.1,52,124/ was raised against the accused for theft of electricity.
2. The complainant company (to be referred as "company" hereinafter) i.e. BSES Yamuna Power Ltd has filed the present complaint case under section 135 read with section 151 of the Electricity Act, 2003 (hereinafter referred to as "Act) against the accused praying that accused be summoned, tried and punished as per law with a further prayer to determine 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 to face trial for the offence U/S 135 of the Electricity Act 2003 by my ld. predecessor vide order dated 26.02.2008. Notice U/S 251 Cr.PC for the offence punishable U/S 135 & 151 of Electricity Act, 2003 was framed against the accused by order dated 05.09.2008 to which accused pleaded not guilty and claimed trial.
4. Complainant in support of its case examined 3 witnesses CC No: 130/08 Police Station: Darya Ganj BYPL Vs. Raj Rani Page 3 of 15 namely PW - 1 Sh. D. P. Singh, PW - 2 Sh. V. N. Tyagi and PW - 3 Sh. Jitender Shankar.
PW - 1 Sh. D. P. Singh deposed that on 25.06.2007, he received a call from the team leader Sh. V. N. Tyagi. He reached at premises bearing no. 1614, Gali Berianwali, Himmat Garh, Sita Ram Bazar, Delhi and found that accused was found using the electricity by tapping the common service line of the company. On his instructions, illegal wire was seized and sealed in a gunny bag. He identified the case property as Ex. P1.
PW - 2 Sh. V. N. Tyagi, deposed that on 25.06.2007 at about 12:30 PM, he along with Sh. Sanjeev Kumar and Sh. Rajinder along with CISF and local police conducted a mass raid at the premises bearing house no. 1614, Gali Bariya, Sita Ram Bazar. At the time of inspection, direct theft was running at the premises and accused was using the load to the tune of 7.28 KW. The inspection report (Ex. CW 2/A), Load report (Ex. CW 2/B) and seizure memo (Ex. CW 2/C) was prepared at site and bore his signature at point B. Videography was conducted by Sh. Sunil (photographer) at site, CD (Ex. CW 2/D). He identified the case property i.e. PVC copper wire two pieces of 2 ½ meter each of seized 3/ 20 SWG of red and yellow colour, two pieces CC No: 130/08 Police Station: Darya Ganj BYPL Vs. Raj Rani Page 4 of 15 of PVC copper wire of length about 3 meter each of size 3/20 SWG of black colour Ex. P1. Persons present at site refused to receive the report and did not allow to paste the same at site.
PW - 3 Sh. Jitender Shankar deposed that the present complaint Ex. CW1/B was filed by Sh. C. B. Sharma. He was authorized vide letter of authority in his favour Ex. CW1/A.
5. Statement of accused U/S 313 Cr.P.C. was recorded in which he denied the allegations against him and stated that she was falsely implicated in this case.
6. Sh. Parveen Yadav, Adv. for the accused had submitted that accused has been falsely implicated in the present case by the officials of the company. Accused has no concern with the premises which was inspected by the company.
PW - 1 Sh. D. P. Singh admitted that no videography was taken by the team members which could show his presence at the site at the time of seizing the case property.
PW - 2 Sh. V. N. Tyagi admitted that he did not carry any CC No: 130/08 Police Station: Darya Ganj BYPL Vs. Raj Rani Page 5 of 15 written authority from his seniors to conduct the raid. 2 3 raids were conducted on that day. He did not remember the exact area of the premises. 4 - 5 persons met him at the time of inspection. He could not tell their names and their relationship with the accused. Public person were not joined as a witness during the raid and inspection. No videography was done showing them preparing the documents at the site. Team / department had not checked the ownership / tenancy documents before or after the raid. Team has not procured any documents regarding the ownership of the premises. Team had not checked the identity proof of the user at site. He had not checked the voter ID card of the accused to ascertain that he was the user at the premises.
PW - 3 Sh. Jitender Shankar admitted that he had no personal knowledge about the case. He was not the member of the inspection team. He had filed the present complaint on the basis of the official records.
Company did not examine Sh. Sanjeev Kumar, Sh. Rajender Singh and Sh. Sunil in the court. Police personnel with the team were also not examined. It was contended that company had failed to prove its case so, accused is entitled to be acquitted in this CC No: 130/08 Police Station: Darya Ganj BYPL Vs. Raj Rani Page 6 of 15 case.
7. Per contra, counsel for company has argued that during inspection, no meter, no DG set generator / inverter was found at site and supply was being used by illegal tapping of common service line LV mains. Accused used the electricity for domestic purpose to the tune of 7.283 KW. Illegal wire which was used for direct theft was seized on the instruction of Sh. D. P. Singh. Necessary videography was captured by Sh. Sunil from M/S Arora Photo Agency at site. The accused was booked for offence of direct theft of electricity.
8. I have gone through the evidence adduced on record and considered the arguments of counsel for both parties.
PW - 2 Sh. V. N. Tyagi, who is crucial witness did not disclose as to how the theft was going at the premises. He also did not disclose the purpose of theft in his examination - in - chief.
The address of the accused mentioned on the first page of the complaint is 1614, Gali Beriyan Wali, Himmat Garh, Sita Ram Bazar, New Delhi, whereas, on the second page, the para no. 5, the CC No: 130/08 Police Station: Darya Ganj BYPL Vs. Raj Rani Page 7 of 15 same is given as T 1614, Gali Beriyan Wali, Himmat Garh, Sita Ram Bazar, New Delhi.
In the site plan, it is clearly shown that theft was going at the premises through pole with LV mains, however, as per complaint, inspection report (Ex. CW 2/A), pre - summoning evidence, it is mentioned that theft was going through common service line / LV main. There is variance of statement as to how the theft was going on at the premises. LV mains and common service line are two different electrical lines as LV mains denotes for Light Voltage Main Supply whereas service cable is meant for supply of electricity through individual connection. This creates serious doubt in the complainant's case.
Sh. Sunil from M/S Arora Photo Studio who is the videographer at the time of inspection not examined in the court 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 videographer was held to be fatal to the case of the company.
The Compact disc (Ex. CW2/D) placed on record is of no CC No: 130/08 Police Station: Darya Ganj BYPL Vs. Raj Rani Page 8 of 15 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.
The company failed to examine Sh. Sanjeev Kumar and Sh. Rajender Singh who were members of raiding team. 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 was occupying the premises in the capacity of owner or tenant. 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, it was held that the accused was rightly acquitted by the trial court as company failed to prove the occupancy CC No: 130/08 Police Station: Darya Ganj BYPL Vs. Raj Rani Page 9 of 15 of accused by positive evidence.
In the inspection report (Ex. CW2/A) in column no.2.2 name of the user is Smt. Raj Rani ("as stated"), however, it was not specified as to who disclosed the name of accused. The persons present at spot not examined in the court by the company to prove their case against the accused.
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 wherein, the order of trial court was confirmed 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 or the some other person who was the user of the premises. CC No: 130/08 Police Station: Darya Ganj BYPL Vs. Raj Rani Page 10 of 15 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.
The reports prepared at site were signed by two members only i.e. Sh. V. N. Tyagi and Sh. Sanjeev Kumar, whereas the team consisted of Sh. Rajinder, Sh. Sunil along with CISF and local police, who never signed on the reports. As per Regulation 52
(ix) of Delhi Electricity Supply Code and Performance Standards Regulations 2007, as per this regulation reports must be signed by each member of the raiding team and also in case of refusal of the reports, by the consumer or his /her representative to either accept or give a receipt, copy of inspection report must be pasted a conspicuous place in / outside the premises.
11. 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 inspection was conducted CC No: 130/08 Police Station: Darya Ganj BYPL Vs. Raj Rani Page 11 of 15 on 25.06.2007, however, company has filed the complaint in the court on 30.01.2008 which is after 6 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).
12. 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 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.
13. 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 CC No: 130/08 Police Station: Darya Ganj BYPL Vs. Raj Rani Page 12 of 15 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.
14. 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.
15. A special Act created always have special measures to avoid its misuse by the investigating agencies, so CC No: 130/08 Police Station: Darya Ganj BYPL Vs. Raj Rani Page 13 of 15 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.
16. In the present case, company has not proved the case by positive evidence as the testimony of PW - 2 has material contradictions which are already observed in the foregoing paras. Moreover, 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.
17. In view of the foregoing reasons, company has failed to prove its case against the accused beyond reasonable doubt, she 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 CC No: 130/08 Police Station: Darya Ganj BYPL Vs. Raj Rani Page 14 of 15 court qua the theft bill raised by the company on the basis of inspection dated 25.06.2007 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/22.04.2015
CC No: 130/08
Police Station: Darya Ganj
BYPL Vs. Raj Rani
Page 15 of 15