Delhi District Court
Bypl vs . Mohd.Haroon on 28 November, 2014
CC No. 76/08
BYPL Vs. Mohd.Haroon
IN THE COURT OF SHRI ARUN KUMAR ARYA,
ADDITIONAL SESSIONS JUDGE, SPECIAL COURT
(ELECTRICITY), TIS HAZARI COURT, DELHI
CC No. 76/08
Unique case ID No.02402R0845612008
BSES Yamuna Power Ltd.
Having its Registered office at
Shakti Kiran Building,
Karkardooma, Delhi-110032
(Through its authorized representative
Sh.C.B.Sharma) ............ Complainant
Through : Sh. Jitender Shankar, AR with
Ld.Counsel for the company.
Vs.
Mohd.Haroon
R/o. MPL No. 632, Rang Mahal,
Ganj Mir Khan, Delhi ................ Accused
Through: Sh.Parveen Yadav, Adv. for accused
Date of Institution : 09.01.2008
Judgment reserved on : 26.11.2014
Date of Judgment : 28.11.2014
Final Order : Acquittal
JUDGMENT
1. As per complaint, on 03.09.2007 a team comprising of Sh.Om Vir Singh (AM), Sh. Deepak Sharma (DET), Sh. Rajeev Sharma and Sh. Zainul Hassan (both lineman) had conducted a raid at premises no.MPL No.632, Rang Mahal Ganj, Mir Khan, Delhi. At the time of inspection, accused was found indulging in direct theft of electricity through illegal wires i.e one piece of two core cable 2x10 mm sqr of one meter, black colour and two piece 4 mm2 of 20 Page 1 CC No. 76/08 BYPL Vs. Mohd.Haroon inch black colour PVC aluminum wire. No meter was found at site. The photographs and visual recording showing the irregularities was conducted by the member of raiding team. The total connected load of 15.611 KW/DX/DT was assessed by the inspection team which was illegally used by the accused for domestic purpose.
The illegal wires i.e one piece of two core cable 2x10 mm2 one meter, black colour and two piece 4 mm2, 20 inch black colour PVC aluminum wire were seized from the spot by the team vide seizure memo Ex.CW2/E. The copy of inspection reports and supplementary bill were duly sent to the accused. The accused is booked for the offence of direct theft of electricity. Subsequently, theft assessment bill for a sum of Rs.2,11,126/- was raised against the accused. On the failure of the accused to deposit the same, present complaint was filed against him.
2. The present complaint was filed by Sh.C.B. Sharma, Authorized Officer of company. The complainant is a company incorporated under the Companies Act, 1956 (to be referred as "company" hereinafter) having its registered office at Shakti Kiran Building, Karkardooma, Delhi-110032 and its branches are located at different places in Delhi. The company is the licensee for supply of electricity in major parts of Delhi, including the premises bearing no. MPL No.632, Rang Mahal Ganj, Mir Khan, Delhi (to be referred as "premises in question" hereinafter) where the offence has been allegedly committed by the accused.
3. The accused was summoned U/s 135 r/w section 151 of the Electricity Act 2003 by my ld. predecessor vide order dated 20.02.2008 after pre-summoning evidence. Notice u/s Page 2 CC No. 76/08 BYPL Vs. Mohd.Haroon 251 Cr.PC of offence punishable u/s 135 and 151 of Electricity Act, 2003 was framed against the accused by my ld. predecessor vide order dated 25.09.2009 to which he pleaded not guilty and claimed trial.
4. Complainant in support of its case examined three witnesses PW-1 Rajeev Ranjan (Authorized representative), PW-2 Sh. Om Vir Singh (Sr.Manager) and PW-3 Sh.D.S.Nabiyal.
PW-1 Sh. Rajeev Ranjan deposed that the present complaint Ex.CW-1/B was filed by Sh.C.B.Sharma. He was authorized vide letter of authority in his favour Ex.PW-1/A to act, appear and plead on behalf of the company in this case.
PW-2 Sh. Om Vir Singh, deposed that on 03.09.2007 he was posted as Assistant Manager at Gandhi Market. As per direction of Manager ( Enforcement ) they conducted a mass raid along with CISF and Local police Chandni Mahal with joint team consisted of him, Sh.Deepak Sharma (DET), Sh.Rajeev Sharma and Zainul Hussain (both lineman) at premises bearing Municipal no. 632 Rang Mahal, Ganj Meer Khan, Delhi-02 at about 11.50AM. At the time of inspection accused was found indulging in direct theft of electricity through illegal PVC cable from common service cable. This cable was connected in the staircase with consumer's wiring. No meter was found at site. The connected load of 15.611 KW was found which was being used for domestic purpose.
They took photographs of connected load and illegal wires in the presence of accused Ex.CW-2/I and compact disc EX.CW-2/G of the photographs. The inspection report Ex.CW-2/B, meter details report EX.CW-2/D, connected load EX.CW-2/C was prepared at site which bore his signatures at point A. The team removed partly illegal Page 3 CC No. 76/08 BYPL Vs. Mohd.Haroon PVC cable from the premises of the accused. Thereafter Manager Enforcement Sh.D.S.Nabiyal was called at site to seize the material who came and seized the material vide seizure memo Ex.CW-2/E which bore his signatures at point A and signatures of Sh.D.S.Nabiyal at point A1. They offered the entire inspection report, load report and seizure memo to the accused but he refused to sign the same and did not allow to paste the same at premises. He correctly identified the accused present in court and the case property as Ex. CW-2/P1(collectively).
PW-3 Sh.D.S.Nabiyal deposed that on 03.09.2007, he was posted as Manager (Enforcement) at Gandhi Market and on that day at about 11.50am, a mass raid was conducted at premises in question alongwith the Chandni Mahal police station staff. During the mass raid, he received a telephonic call from Sh.Omvir Singh, Assistant Manager that they had detected a theft of electricity at the premises in question. He reached at site and shown the theft of electricity. After that the illegal cable was removed for the purpose of seizing the evidence material i.e two core cable (1 no.) and PVC aluminum wire (2 no.) and sealed in a gunny bag with his seal. He correctly identified the case property as Ex.CW-2/P1 (collectively).
5. In statement recorded u/s 313 Cr.PC, accused had denied the allegation and stated that he has been falsely implicated in the present case and no raid was conducted at his premises.
6. Sh. Parveen Yadav, Adv. for the accused had argued that accused is falsely implicated in this case and company failed to bring any incriminating material against him.
Page 4 CC No. 76/08 BYPL Vs. Mohd.Haroon During cross examination PW-2 admitted he had not given any written letter separately in the concerned police station regarding the theft of electricity at the above mentioned site. There was hindrance in the inspection carried out by them, however they did not reported such hindrance to police. The photograph of the accused could not be taken. Theft of electricity at the premises was taking place by connecting a cable to BSES Yamuna Power Ltd common Service Line which comes from the LV mains. He pointed out the service common cable mark X in the photograph Ex.CW1/I. The cable being used for theft is mark Y in the same photograph. The seized wire was shown in the photograph at point M and N encircled.
No public person was made as a witness. The said inspection was conducted in the presence of CISF and Delhi Police Officials. He had not made any complaint to the police for initiating legal proceedings against the persons who refused to be witnesses.
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 evidence on record which connect the theft with the accused. The company failed to prove the occupation of accused in the inspected premise. It was contended that company had failed to prove its case so, accused is entitled to be acquitted in this case.
7. Per contra, counsel for company has argued that during inspection, accused was found indulging in direct theft of electricity through illegal wires i.e PVC cable, common service cable. The photograph / video recording showing the irregularities was taken Page 5 CC No. 76/08 BYPL Vs. Mohd.Haroon by member of raiding team. The illegal material was seized from the spot. The total connected load of 15.611 KW/DX/DT was assessed by the team illegally used by the accused for domestic purpose. The accused was booked for offence of direct theft of electricity. As per deposition of PW-2 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 gone through the evidence adduced on record and heard arguments of counsel for both parties.
The company failed to examine Sh. Deepak Sharma (DET), Rajeev Sharma and Zainul Hassan (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 is 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.
In the inspection report (Ex.CW-2/B) in column no.2.2 name of the user is Md.Haroon ("as stated"), however, it was not specified as to who disclosed the name of accused. The accused was present at the spot, however he has not been photographed. The complaint is silent about the fact whether the inspection reports were offered to the accused for signature and that CISF and local police of PS Chandni Mahal accompanied the team during raid. However, on report it was reported 'refused to sign'. If accused was present at site Page 6 CC No. 76/08 BYPL Vs. Mohd.Haroon then why the fact of said refusal was not reported to the police, who were with the team. The said inspection was conducted in the presence of CISF and Delhi Police officials, however, none of the police official was named in the complaint or in list of witnesses. It was nowhere stated as to who prepared the inspection reports. The wire which was seized was black, however, the PW-2 identified the seized wire in photograph at point M which was red in colour.
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 Md.Haroon who was the user of the premises. 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.
11. As per judgment of Hon'ble High Court in 2012 (4) JCC 2713 titled as BSES Rajdhani Power Ltd. Vs. Sunheri & Page 7 CC No. 76/08 BYPL Vs. Mohd.Haroon Ors. the company was under obligation to examine the member of raiding team who took photographs or recorded the videography.
The Compact disc (Ex.CW-2/G) 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 sub-clause ''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 Court of Delhi).
12. 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 09.01.2008 after 4 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 (Jarnail Singh Vs. State of Haryana 1993 Crl.LJ 1656 SC).
13. 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 Page 8 CC No. 76/08 BYPL Vs. Mohd.Haroon 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.
14. 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, though the CISF and local police accompanied the team, thereby violating the aforesaid regulation.
15. 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 Page 9 CC No. 76/08 BYPL Vs. Mohd.Haroon 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 and mentioned in the list of witnesses was not examined in the court either, so the complaint Ex.CW-1/B remains unproved on record.
16. 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.
17. 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. 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.
18. 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 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 Page 10 CC No. 76/08 BYPL Vs. Mohd.Haroon court qua the theft bill raised by the company on the basis of inspection dated 03.09.2007 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/28.11.2014
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CC No. 76/08
BYPL Vs. Mohd.Haroon
28.11.2014
Present: Sh. Jitender Shankar, Authorized Representative for the
complainant company.
Sh.Parveen Yadav, Adv. for accused alongwith accused.
Vide separate judgment announced today, accused is acquitted of the charges punishable U/S 135 & 151 of Electricity Act 2003. Bail bond of the accused cancelled and surety discharged. Amount, if any, deposited by the accused as a condition for bail be released by the complainant company after expiry of period of appeal.
However, in terms of Section 437 (A) Cr.PC., accused are directed to furnish a bail bond for the amount of Rs.40,000/- with one surety in the like amount, to appear before the appellate court, as and when such notice is issued in respect of any appeal, which may be filed against this judgment.
Necessary bail bond with surety, in compliance with the order, has been furnished by the accused along with latest passport size photograph and residential proof is accepted. File be consigned to record room.
Announced in open court (Arun Kumar Arya)
ASJ/Special Court (Elect.)
Tis Hazari/Delhi/28.11.2014
Page 12