Delhi District Court
Bypl vs . Naresh Kumar on 22 November, 2014
CC No: 999/07
Police Station: Nabi Karim
BYPL Vs. Naresh Kumar
IN THE COURT OF SHRI ARUN KUMAR ARYA,
ADDITIONAL SESSIONS JUDGE, SPECIAL COURT
(ELECTRICITY), TIS HAZARI COURT, DELHI
CC No. 999/07
Unique case ID No: 02402R0046292009
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.
Naresh Kumar
BB - 480, Nabi Karim
Pahar Ganj, Delhi55
Through: Sh. Rajesh Bhatt, Adv. for accused
Date of Institution ....... 20.11.2007
Judgment reserved on ....... 12.11.2014
Date of Judgment ....... 22.11.2014
Final Order ....... Acquitted
JUDGMENT
1. The brief facts of the case are that on 13.08.2007, at about 12:30 PM, an inspection was carried out by the members of the Page 1 of 16 CC No: 999/07 Police Station: Nabi Karim BYPL Vs. Naresh Kumar raiding team of the complainant company (to be referred as "company" hereinafter) consisting of Sh. Shashi Kumar (AM), Sh. Rehimuddin (Engg.), Sh. Neeraj and Sh. Krishan Lal (both lineman Tr.) at the premises bearing no. BB - 480, Nabi Karim, Paharganj, Delhi, (to be referred as "premises" hereinafter) which were allegedly used by accused Naresh Kumar.
The accused was found indulging in direct theft of electricity by illegally tapping from the BSES service line cable. No meter was found at site. Entire connected load of 5.536 KW was running directly by tapping the electricity from the common service line cable. The connected load was used for industrial purpose (triple shift) i.e. for the work of manufacturing of leather bags.
Necessary photographs and videography of the connected load were taken by member of joint inspection team through digital camera. During the course of inspection member of the raiding team as per procedure called Sh. S. K. Gajbhiye, Manager, Enf. at site and in his presence material evidence i.e. two black coloured PVC aluminium wire of 4mm Sq. in size and length of 8mtr (4 mtr each) which was used for direct theft of electricity was seized.
At the time of inspection, accused neither accepted nor allowed the team member to paste the inspection report at the Page 2 of 16 CC No: 999/07 Police Station: Nabi Karim BYPL Vs. Naresh Kumar premises. An assessment bill of Rs. 4,31,202/ 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 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 04.12.2007. 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 01.10.2008 to which accused pleaded not guilty and claimed trial.
4. Complainant in support of its case examined 3 witnesses namely PW - 1 Sh. S. K. Gajbhiye, PW - 2 Sh. Shashi Kumar and PW - 3 Sh. Rahimuddin. Accused examined himself as DW - 1.
PW - 1 Sh. S. K. Gajbhiye, deposed that on 13.08.2007, Sh. Shashi Kumar (AM) intimated over the telephone that team had detected theft of electricity at premises. He reached the premises in question and instructed the lineman to remove the illegal cable for Page 3 of 16 CC No: 999/07 Police Station: Nabi Karim BYPL Vs. Naresh Kumar seizing the case property.
PW - 2 Sh. Shashi Kumar, deposed that on 13.08.2007 at about 12:30 PM, he along with Sh. Rahimuddin, Sh. Neeraj Giri and Sh. Krishan Lal had conducted a raid at the premises. At the time of inspection no meter was found at site and electricity supply was directly consumed by the accused from BYPL other user service cable through illegal tapping for commercial purpose. The connected load was found to the tune of 5.536 KW / DT/ IX.
The inspection report along with meter details report (Ex. CW2/A) and load report (Ex. CW 2/B) were prepared and bore his signature at point A. Team took the photographs (Ex. CW 2/D) and CD containing the photographs of the accused (Ex. CW 2/D1). Accused was shown in the photograph marked as Z. He called Sh. S. K. Gajbhiye to seize the material vide seizure memo (Ex. CW 2/C) and bore his signature at point X. Team offered the entire inspection reports to the accused who refused to sign and did not allow the team to paste the same at the premises.
PW - 3 Sh. Rahimuddin, deposed that on 13.08.2007, at about 12:30 PM, he along with Sh. Shashi Kumar, Sh. Neeraj Giri and Sh. Krishan Lal had conducted a raid at the premises and deposed on lines of PW 2 Sh. Shashi Kumar.
Page 4 of 16
CC No: 999/07 Police Station: Nabi Karim BYPL Vs. Naresh Kumar DW - 1 Sh. Naresh Kumar deposed that on 13.08.2007, he was residing at BB477, Ashok Basti, Nabi Karim, Delhi. On that day, when he was standing outside from his house, he heard a noise and saw a crowd gathered at BB480, Nabi Karim, Delhi. He went there to know about the incident then he came to know that a raid was conducted at that house and the officials of the raiding team asked to him to join the raid. He went inside the house with them. The officials of the raiding team noted down his address. He filed the ration card address bearing no. BB477, Ashok Basti, Nabi Karim, Delhi which is Ex. DW 1/A, ID proof Ex. DW 1/B and original electricity bill Ex. DW 1/C. He had no concern with the inspected premises and officials of the complainant company falsely implicated him in the present case.
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. Rajesh Bhatia, Adv. for the accused has argued that accused is falsely implicated in this case as he was never resided at the premises. Company did not procure any ownership which shows that accused was the owner of the premises. No incriminating evidence comes against the accused. He submitted that no inspection was carried out at the premises as alleged, no documents like inspection report, load report, seizure memo etc. were Page 5 of 16 CC No: 999/07 Police Station: Nabi Karim BYPL Vs. Naresh Kumar prepared at the spot. Details of other user from whose service line the theft was going on were not mentioned by the company in the reports as well as evidence adduced on record.
During cross examination PW 1 Sh. S. K. Gajbhiye admitted that he was not part of the inspection team. He did not know about the owner / consumer of the electricity at the premises. He did not remember as to who were the representative of accused present at site. He also did not remember whether he met the accused at the time of inspection as he went to seize the material only.
During cross examination PW - 2 Sh. Shashi Kumar admitted that team were verbally directed by Manager Enforcement to conduct the raid at the premises. He did not ask public persons to join the raiding party. 4 - 5 persons were present at the premises at the time of inspection but team did not ask about the ownership of premises from them. He did not investigate about the owner of the premises after or before the raid.
During cross examination PW - 3 Sh. Rahimuddin admitted that team had written direction by DGM Enforcement to conduct the raid at the premises. He further admitted that Shashi Kumar was the team leader and he investigated about the owner of the premises, however, the team had no documentary proof regarding the premises.
Page 6 of 16
CC No: 999/07 Police Station: Nabi Karim BYPL Vs. Naresh Kumar The documents of ownership / occupancy were not procured by the team. No inquiry on the aspect of occupancy of the premises was made. 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 material evidence on record which connect the theft with the accused. The company failed to prove the occupation of accused persons in the inspected premise. It was contended that company had failed to prove its case so, accused persons are 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 tapping from the BSES service line cable. No meter was found at site. The entire connected load of 5.536 KW was running directly by tapping the electricity from the common BSES service line cable and the same was used for industrial purpose. Videography / photography of the connected load has been done by a member of the joint inspection team through a digital camera. Counsel for the company argued that accused was present at the time of inspection and his presence was shown in the photographs (Ex. CW 2/D) at point Z. As per deposition of complainant witnesses, the company has been able to prove its case against the accused beyond Page 7 of 16 CC No: 999/07 Police Station: Nabi Karim BYPL Vs. Naresh Kumar reasonable doubt. Accordingly, accused is liable to be convicted in this case.
7. I have gone through the ocular / documentary evidence adduced on record and arguments advanced at bar by counsel for parties.
The company failed to examine Sh. Neeraj Giri and Sh. Krishan Lal (both lineman) 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 of accused by positive evidence.
The inspection report (Ex. CW2/A) states in the column name of the user as Naresh Kumar ("as stated"), however, it was not specified as to who disclosed the name of accused. The complaint is silent about the fact whether accused was found at the spot or not. The inspection reports were neither signed nor allowed to be pasted Page 8 of 16 CC No: 999/07 Police Station: Nabi Karim BYPL Vs. Naresh Kumar at the premises, however, the reason for same was not explained. The fact of said non compliance i.e signing or pasting the inspection reports was not reported to the police. The persons who had met the team was neither named in the complaint, inspection reports, nor in examination in chief of witnesses.
8. 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.
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 13.08.2007.
(b) Whether the theft of electricity was going on at the time of inspection.
(c) Whether accused was occupying the inspected Page 9 of 16 CC No: 999/07 Police Station: Nabi Karim BYPL Vs. Naresh Kumar premises at the time inspection.
PW - 1 Sh. S. K. Gajbhiye who is the crucial witness as he is only person on whose direction the illegal material was seized. In his examination - in - chief he admitted that he instructed the line man to remove the illegal cable and seizure memo was prepared, however, the seizure memo was not proved in court.
As per pre summoning evidence and complaint, it is contented that accused was using the electricity through BSES service line cable, however, as per examination - in - chief of PW 1 Sh. Shashi Kumar, PW 2 Sh. Rahimuddin and as per inspection report, the theft was being committed by the accused through other user's service cable. If the accused using the electricity through other's user service line, then company was under obligation to examine him in court.
PW 3 Sh. Rahimuddin, admitted in his cross examination that PW 2 Sh. Shashi Kumar who was the team leader inquired about the owner of the premises, however, on the other hand PW 2 admitted that he never inquired about the owner of the premises at the time of inspection.
PW 2 stated in his cross examination that there was a verbal direction by Manager Enforcement to conduct the raid at the premises and PW 3 stated his cross examination that written direction Page 10 of 16 CC No: 999/07 Police Station: Nabi Karim BYPL Vs. Naresh Kumar was given by DGM Enforcement to conduct the raid at the premises.
PW 2 and PW 3 both deposed during their examination - in - chief that theft was done for commercial purpose, however, as per inspection report which is a part of meter details report (Ex. CW 2/A, colly), pre - summoning evidence and complaint, it is clearly mentioned that theft was done for industrial purpose.
Witnesses i.e. PW 2 and PW 3 admitted that 45persons were present. Accused was present at the time of inspection. Company has also not made the persons present at site as a witness to prove their case against the accused. 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, 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.
Site plan prepared by the member of the raiding team was Page 11 of 16 CC No: 999/07 Police Station: Nabi Karim BYPL Vs. Naresh Kumar required to be proved specifically, however, the same was not done. The company was under obligation to prove this site plan to specify the mode of theft.
Team had not mentioned the details of the user from whose service line the accused was tapping the electricity. Name of the owner of the entire premises was not disclosed by company witnesses. They had not taken any documentary proof regarding the ownership of 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 his presence was shown in the photographs (Ex. CW 2/D) at point Z. Photographs were taken by one Sh. Neeraj Giri, who was the member of the raiding team and also cited in the list of witnesses, however, he was not examined 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 photographer was held to be fatal to the case of the company.
The Compact disc (Ex. CW2/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 Page 12 of 16 CC No: 999/07 Police Station: Nabi Karim BYPL Vs. Naresh Kumar 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.
9. 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 20.11.2007 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 3247).
10. 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 Page 13 of 16 CC No: 999/07 Police Station: Nabi Karim BYPL Vs. Naresh Kumar 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.
11. 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 who had joined the raid were not examined as witnesses.
12. 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. Page 14 of 16
CC No: 999/07 Police Station: Nabi Karim BYPL Vs. Naresh Kumar 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/A remains unproved on record.
13. 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.
14. In the present case, company has not proved his case by positive evidence as the testimony of PW - 2 and PW - 3 have Page 15 of 16 CC No: 999/07 Police Station: Nabi Karim BYPL Vs. Naresh Kumar 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 13.08.2007 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/22.11.2014
Page 16 of 16