Delhi District Court
Bypl vs . Ravi on 7 October, 2014
CC No: 1000/07
BYPL Vs. Ravi
IN THE COURT OF SHRI ARUN KUMAR ARYA,
ADDITIONAL SESSIONS JUDGE, SPECIAL COURT
(ELECTRICITY), TIS HAZARI COURT, DELHI
CC No. 1000/07
Unique case ID No.02402R0074062009
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 company.
Vs.
1. Ravi
R/o: Sulabh Sauchalaya,
64, Khamba, Mir Dard Lane,
Mata Sundri Road,Dariya Ganj, Delhi ................ Accused
Through: Sh. Jitender, Adv. for accused.
Date of Institution : 21.11.2007
Judgment reserved on : 01.10.2014
Date of Judgment : 07.10.2014
Final Order : Acquittal
JUDGMENT
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CC No: 1000/07 BYPL Vs. Ravi
1. The case of the company, in brief, is that on 19.04.2007,at about 1:00 pm, a mass raid was conducted by the officials of the complainant company i.e. Sh. Kapil Kumar Pandey (AM), Sh. Deepak Sharma (DET), Sh. Asif Ahmed and Sh. Manoj Kumar (both lineman) along with CISF and Delhi Police at the premises bearing Sulabh Sauchalaya, 64 Khamba, Mir Dard Lane, Mata Sundri Road,Dariya Ganj, Delhi (hereinafter to be referred as "inspected premises") During the inspection, team found that user was found indulging in direct theft of electricity by direct tapping from BSES LTMP box through illegal wire. No meter was found at site. The supply was being used for commercial purpose to the total tune of 6.472 KW.
During the process of inspection, photographs and visual recording showing the irregularities were taken by the members of the raiding team through digital camera.
At the time of inspection Sh. D. P. Singh (Manager, Enforcement) was called at site to seize the material evidence i.e. (1) One number PVC wire, of 7/18 SWF, 5 mtr. steel black colour. (2) One number PVC 2 core, 2X10 Sq./2 mtr. aluminium of black colour.
(3) One PVC aluminium wire of 4mm Sq. 2 mtr, black colour.
The accused was illegally, unauthorizedly and dishonestly Page 2 of 13 CC No: 1000/07 BYPL Vs. Ravi using the electricity for the commercial purpose. An assessment theft bill of Rs. 2,99, 047/ 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 135/138 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 were summoned to face trial for the offence U/S 135 of the Electricity Act 2003 by my ld. predecessor vide order dated 05.12.2007.
4. Notice U/S 251 Cr.PC for the offence punishable U/S 135 of Electricity Act, 2003 was framed against the accused (Ravi) by order dated 01.04.2013 to which accused pleaded not guilty and claimed trial.
5. Complainant in support of its case examined 3 witnesses namely PW - 1 Sh. Kapil Kumar Pandey, PW - 2 Sh. D. P. Singh, PW - 3 Sh. C. B. Sharma.
PW - 1 Sh. Kapil Kumar Pandey, deposed that on Page 3 of 13 CC No: 1000/07 BYPL Vs. Ravi 19.04.2007, he along with Sh. Deepak Sharma (DET), Sh. Asif Ahmed and Sh. Manoj Kumar (both lineman) inspected the premises i.e Sulabh Sauchalaya, 64 Khamba, Mir Dard Lane, Mata Sundri Road, Darya Ganj, Delhi At the time of inspection, no meter was found at site and electricity supply was directly consumed by the accused from BYPL LTMP box through illegal tapping for commercial purpose. The supply was being used for commercial purpose to the tune of 6.472 KW.
The inspection report (Ex. CW 2/A) and Load report (Ex. CW 2/B) prepared at site and bore his signature at point A and on load report at point B. The inspection report was offered to the accused who refused to sign the same and did not allow to paste it the inspected premises.
PW - 2 Sh. D. P. Singh, deposed that on 19.04.2007, he received a telephonic call from Sh. Kapil Kumar Pandey. He reached the inspected premises where the team members showed him the theft of electricity. He seized the material i.e. PVC wire, black colour of size 7x18 SWG of length 5 mtrs, PVC aluminium 2 core wire of size 2x10 mm.sqr. black of length 2 mtrs, PVC aluminium wire of size 4 mm. Sqr., black colour of length 2 mtrs. He instructed the team leader to prepare the seizure memo vide a seizure memo (Ex. CW Page 4 of 13 CC No: 1000/07 BYPL Vs. Ravi 2/C) bore his signatures at point A. PW - Sh. C. B. Sharma, deposed that the present complaint Ex.CW1/B was filed by him. The company executed a power of attorney in his favour Ex. CW1/A.
6. Statement of accused U/S 313 Cr.P.C. was recorded in which he denied the allegations against him and stated that he was falsely implicated in this case as he was neither the user nor the owner / contractor for the Sulabh Suachalyay. Sulabh Sauchalayay is the property of MCD.
7. Sh. Jitender, Adv. for the accused had submitted that accused no. 1 (Ravi) has been falsely implicated in the present case by the officials of the company. He had no knowledge of raid conducted at the inspected premises.
During cross examination of PW - 1 Sh. Kapil Kumar Pandey admitted that he had verbal instructions from the Manager Enforcement to conduct the raid. He did not make any inquiry regarding the ownership of the inspected premises. No inquiry was made from the MCD regarding the ownership or contract of the sulabh sauchalayay. No public persons were made as a witness.
He admitted that accused was not shown in photographs. No documents in the name of accused Ravi were collected or seen by the team. No documents were pasted at the inspected premises. Page 5 of 13
CC No: 1000/07 BYPL Vs. Ravi Preparation of the seizure memo is not being shown in any of the photographs.
PW - 2 Sh. D. P. Singh admitted during cross examination that he was not the member of the raiding team. His work was to seize the material only. He has no knowledge about the theft. He admitted that preparation of seizure memo was not shown in any of the photographs.
PW 3 Sh. C. B. Sharma, admitted that he was not the member of the raiding team. He had filed the complaint on the basis of the official records.
No signature of any independent witness was obtained on the inspection report. There was no evidence on record which connect the theft with the accused. Company did not make any inquiry as to who was the person, responsible for running the said Sulabh Sauchalayay. It was contended that company had failed to prove its case so, accused (Ravi) is entitled to be acquitted in this case.
Per contra, counsel for the company made his submission that at the time of inspection accused was found indulging in direct theft of electricity by direct tapping from BSES LTMP box through illegal wire. The supply was being used for commercial purpose to the total tune of 6.472 KW. Illegal material was seized at site. Page 6 of 13
CC No: 1000/07 BYPL Vs. Ravi The entire documents i.e. inspection report, load report, seizure memo prepared by the team of the company at the spot as per rules. The accused was booked for offence of direct theft of electricity. As per testimonies of witnesses, 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 perused the documents filed on record by the company and gone through the rival submissions made by counsel of parties.
9. The company did not verify whether the inspected Sulabh Sauchalayay was the property of Municipal Corporation of Delhi or it belong to some other person or organization. As the company failed to prove on record the ownership of the property or as who was running the inspected premises, thus, it failed to book the person for theft of electricity who was either incharge or was responsible for the running of the abovesaid sulabh sauchalayay at the of inspection.
It is not mentioned in the inspection report whether the accused was occupying the premises in the capacity of tenant, owner or contractor. Company also failed to file any proof of proprietorship documents of M/s Sulabh Sochalyay. Failure to make inquiry in this respect puts shadow on the case of company.
10. As per inspection report (Ex. CW 2/A) the name of Page 7 of 13 CC No: 1000/07 BYPL Vs. Ravi accused Ravi was mentioned in the column as user and along with their names, the words "as stated" are recorded. The inspection report is silent on the aspect that whether accused Ravi was present at the spot. It is surprising as to who had mentioned the name of accused to the inspecting team. The company, after the raid and before the filing of present complaint had sufficient time to inquire about the accused as to how he was connected with the inspected premises and could have mustered evidence against him. As the inspection team had not checked or verified the ownership/occupancy of the inspected premises, this makes the case of the company doubtful. As per 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, wherein accused were acquitted as no inquiry in respect to occupancy of premises was conducted by the company.
Site plan is silent as address as well as mode of theft is not mentioned. The company was under obligation to prove this site plan which they failed to do so. The inspection report is silent on the aspect as to on which address theft of electricity was going on.
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 complaint in the present case was Page 8 of 13 CC No: 1000/07 BYPL Vs. Ravi filed on 21.11.2007 after approximately 7 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. The FIR in the present case is not lodged by the company against the accused, thus, the company had failed to comply the abovesaid regulation.
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 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.
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 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 Page 9 of 13 CC No: 1000/07 BYPL Vs. Ravi 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.
Photographs were taken by team members but who actually took the photographs 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/E) 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.
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CC No: 1000/07 BYPL Vs. Ravi
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. 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.
15. 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 Page 11 of 13 CC No: 1000/07 BYPL Vs. Ravi case of theft, that has a negative impact on the merit of a case.
The status of accused was not mentioned in the inspection report as to how he was occupying the inspected premises. No evidence is led to prove whether accused was owner / tenant / occupant or unauthorized occupant of the inspected premises. Failure to make inquiry in this respect puts shadow on the case of company. No independent person was joined at the time of seizure of case property.
16. In the present case, company has not proved his case by positive evidence as the testimony of PW - 1 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.
17. 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 Page 12 of 13 CC No: 1000/07 BYPL Vs. Ravi theft bill raised by the company on the basis of inspection dated 19.04.2007 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/07.10.2014
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