Delhi District Court
Through : Sh. Jitender Shankar vs . on 5 February, 2015
IN THE COURT OF SHRI ARUN KUMAR ARYA,
ADDITIONAL SESSIONS JUDGE, SPECIAL COURT
(ELECTRICITY), TIS HAZARI COURT, DELHI
CC No. 383/08
Unique case ID No.02402R0046862009
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, AR with Ld. counsel
for the company.
Vs.
Abdul Rashid
3242 Second Floor,
Kucha Tara Chand, Darya Ganj
Delhi06 ................ Accused
Through: Sh. Parveen Yadav, Adv. for accused
Date of Institution : 01.07.2008
Judgment reserved on : 03.02.2015
Date of Judgment : 05.02.2015
CC No: 383/08
Police Station: Darya Ganj
BYPL Vs. Abdul Rashid 1/16
Final Order : Acquitted
JUDGMENT
1. As per complaint, on 17.12.2007 at 06:15 PM, as per direction of Manager ( O & M), an inspection was conducted by a joint team of BSES officers along with Delhi Police and labour staff at 3242, Second Floor, Kucha Tara Chand, Darya Ganj, Delhi (to be referred as "premises" hereinafter). The team of complainant company consisted of Sh. A.K. Jain (AM), Sh. N. K. Kaushal (AM), Sh. D. R. Murya (Engg.), Sh. R. K. Tyagi (Engg.), Sh. Rakesh Kumar (ALM) and Sh. Karan Singh (LM). As per inspection, accused was found to be the user of the electricity and was the registered consumer of the sanctioned connection bearing K No: 1120 2539 0481. The accused was found indulging in direct theft of electricity by directly tapping BSES service mains through PVC wire. The user created resistance while taking the photographs of the entire load, however, some photographs were taken with the help of digital camera by joint team.
The accused was illegally, unauthorizedly and dishonestly using the electricity for domestic purpose to the tune of 6.003 KW. Sh. Jai Prakash (Manager, O & M) was called at site and the following alleged material such as:
1. 7/20 SWG, Copper PVC wire, one, 47 M, Black Colour. CC No: 383/08 Police Station: Darya Ganj BYPL Vs. Abdul Rashid 2/16
2. 4 MM SQ. Multistand Copper PVC wire, 2 Pieces, 62 M, black colour.
3. 63 A Troslot one make Havels.
was seized at the time of inspection. The accused was booked for the offence of direct theft of electricity. Subsequently, theft assessment bill for sum of Rs. 97,334/ was raised against the accused. On the failure of accused to deposit the same, present complaint was filed against them.
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, Delhi110032 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 where the offence has been allegedly committed by the accused.
3. The accused was summoned U/S 135 of the Electricity Act 2003 by my ld. predecessor vide order dated 01.09.2008 after presummoning evidence. 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 vide order dated CC No: 383/08 Police Station: Darya Ganj BYPL Vs. Abdul Rashid 3/16 24.04.2009 to which he pleaded not guilty and claimed trial.
4. Complainant in support of its case examined four witnesses i.e. PW - 1 Sh. Daya Ram Maurya (Senior Manager), PW - 2 Sh. A. K. Jain (DGM), PW - 3 Sh. R. K. Tyagi (Assistant Manager) and PW - 4 Sh. C. B. Sharma (Assistant Manager).
PW - 1 Sh. Daya Ram Maurya deposed that on 17.12.2007, he along with Sh. A.K. Jain (Team Leader), Sh. N.K. Kaushal and Sh. R.K. Tyagi had conducted a raid at the premises bearing no. 3242, Kucha Tara Chand, Second Floor, Darya Ganj, New Delhi. At the time of inspection, accused was indulging in direct theft of electricity by tapping the main line of BSES Yamuna Power Ltd for domestic purpose. Sh. A. K. Jain, prepared inspection report (Ex. CW 2/A), and load report Ex.CW2/B. Sh. A. K. Jain seized the illegal material vide seizure memo (Ex. CW 2/C) which bore his signature at point 'A'. The team took the photographs (Ex. CW 2/D) and true copy of CD (Ex. CW 2/E). He identified the case property i.e. one 63 ampere Isolator make havells, two black colour copper wire of 4 MM Sq. having length of 0.62 mtr., 7X20 SWG wire of black colour having length of 0.47 mtrs. Ex. P1.
PW - 2 Sh. A. K. Jain deposed that on 22.12.2007, he CC No: 383/08 Police Station: Darya Ganj BYPL Vs. Abdul Rashid 4/16 along with Sh. D.R. Maurya (Engineer), Sh. N.K. Kaushal and Sh. R.K. Tyagi, Sh. Rakesh Kumar and Sh. Karan Singh (linemen) inspected the premises bearing no. 3242, Kucha Tara Chand. Firstly, the team we went to the Police Station Darya Ganj for taking police assistance then they reached at the area Kucha Tara Chand. They inspected the premises bearing no. 3242, Kucha Tara Chand at about 06:15 PM. At the time of inspection, one isolator was installed at the ground floor and illegal cable connected with isolator through tapping service line of BSES Yamuna Power Ltd before the meter. Team switched off the isolator it was revealed that electricity of the second floor was off. He prepared the inspection report (Ex. CW 2/A), and load report Ex.CW2/B. Reports bore his signature at point 'B'. He directed Sh. R. K. Tyagi for taking the photographs (Ex. CW 2/D) and true copy of CD (Ex. CW 2/E). He called Sh. Jai Prakash to seize the illegal material vide seizure memo (Ex. CW 2/C), same bore his signature at point B. PW - 3 Sh. R. K. Tyagi, deposed that on 17.12.2007, he along with Sh. A. K. Jain, Sh. N. K. Kaushal, Sh. D. R. Maurya and Sh. Karan Singh went to the Police Station Darya Ganj for taking the police assistance for conducting a raid at the premise bearing no.
nd 3242, 2 floor, Kucha Tara Chand, Darya Ganj, Delhi. Accused Abdul Rashid abstracted the electricity directly tapping from service CC No: 383/08 Police Station: Darya Ganj BYPL Vs. Abdul Rashid 5/16 cable with the help of isolated switch bypassing the meter. He took the photographs of the connected load and mode of theft on the direction of Sh. A. K. Jain. He further deposed the same lines of PW
- 1 and PW - 2.
PW - 4 Sh. C. B. Sharma deposed that the present complaint Ex. CW - 1/B was filed by himself. He was authorized vide letter of authority in his favour Ex. CW - 1/ A.
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.
During cross examination, PW - 1 Sh. Daya Ram Maurya, PW - 2 Sh. A. K. Jain and PW - 3 Sh. R.K. Tyagi admitted that the raid was conducted on the oral instructions of Sh. Jai Prakash. They had not collected any information / documents regarding the ownership of the premises. One meter was installed at the premises CC No: 383/08 Police Station: Darya Ganj BYPL Vs. Abdul Rashid 6/16 of the accused which was allegedly in the name of accused but was not seized. No inquiry in regard to the said theft was being conducted by any of the neighbors. Public persons were not made as a witness. No hindrance was created while conducting the inspection.
Team took the assistance of police official for conducting the raid and they were associated with them. No written letter for assistance of the police was made to the Police Station. Accused was not photographed. No photograph filed on record which could have show the meter with "cut" on the service line. No photograph were filed on record showing the preparation of the documents at site. It is correct that documents were not pasted at the premises in question due to resistance of the user. The service line is not visible in the photographs filed on record.
PW - 4 Sh. C. B. Sharma admitted that he had no personal knowledge of the case. He was not the member of the inspection team. He had filed the complaint on the basis of official record.
As per allegations of the company theft was going on the second floor, however, company did not prove as to which meter was sanctioned for feeding the electricity. The company did not prove as to who was the registered consumer of the meter which was installed CC No: 383/08 Police Station: Darya Ganj BYPL Vs. Abdul Rashid 7/16 at the premises.
No public person was joined as a witness. The documents of ownership / occupancy relating to inspected premises were not procured by the team. 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 business of book binding of accused in the 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, user was found indulging in direct theft of electricity by directly tapping BSES Yamuna Power Ltd service mains through PVC wire. Accused was the user of the electricity and was the registered consumer of the sanctioned connection having K NO: 1120 2539 0481. The illegal wire has been removed and seized. The accused used the load of 6.003 KW for domestic purpose. At the time of inspection, necessary visual recording and photographs showing the irregularities was also taken by joint team with the help of digital camera. The accused was booked for offence of direct theft of CC No: 383/08 Police Station: Darya Ganj BYPL Vs. Abdul Rashid 8/16 electricity. As per deposition of company 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 gone through the evidence adduced on record and considered the arguments of counsel for both parties.
The company failed to examine Sh. N. K. Kaushal, Sh. Rakesh Kumar and Sh. Karan Singh who were members of raiding team in the court. No explanation has been assigned for non examination of these witnesses. No independent person was joined at the time of inspection or 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. In the inspection report (Ex. CW2/A) in column no. 2.1 the name of registered consumer and in the column 2.2 name of the user (as stated) mentioned as Abdul Rashid, however, it was not specified as to who disclosed the name of accused.
CC No: 383/08 Police Station: Darya Ganj BYPL Vs. Abdul Rashid 9/16 Counsel for the accused urged that company has not filed on record the photograph which show the "cut" of tapping in the service line before the meter. Service line was also not shown in the photograph. It is mandatory on their part because as per allegation of the company they must prove the electronic record of tapping filing the photographs of tapping before the meter on record.
Company has not seized the meter from the site which is mandatory on their part because as per regulation 52 (vii) of Delhi Electricity Supply Code and Performance Standards Regulations it was the duty of the team members to seize each and every material i.e. wires / cables, meter, service line etc. from the site which was used for theft.
As per allegations of the company theft was going on the second floor, however, company has not proved the occupancy of the floor to connect the accused with the theft of electricity. Company has also not placed on record as to who was the registered consumer of the meter which was installed at the premises by producing the records which was deposited by the consumer at the time of request of installation of meter.
PW - 1 Sh. Daya Ram Maurya deposed in his examination - in - chief that material was seized by Sh. A. K. Jain, CC No: 383/08 Police Station: Darya Ganj BYPL Vs. Abdul Rashid 10/16 however, as per pre - summoning evidence and as per complaint, material was seized by Sh. Jai Prakash. Entire reports were signed by Sh. A.K. Jain, Sh. R. K. Tyagi, Sh. N. K. Kaushal and Sh. D. R. Maurya, however, on the seizure memo only Jai Prakash and Sh. A. K. Jain signed. This creates doubt on the manner of the seizure of the case property.
Counsel for the company argued that accused was present at the time of inspection, however, same was not proved by member of the raiding team as they have not collected any documents i.e. election card / ration card which shows that accused was the actual user or he was present at the time of inspection.
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. So, the assertion of the witness that accused had herself told that he was the owner of the CC No: 383/08 Police Station: Darya Ganj BYPL Vs. Abdul Rashid 11/16 inspected premises is of no help to the company.
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 ''Abdul Rashid'' 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. typed
11. Company has not seized the entire material evidence / illegal material from the site, it was the duty of the company to seize the entire material evidence, which they failed to do so. 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 entire illegal material from the site was held to be fatal to the case of the company.
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 CC No: 383/08 Police Station: Darya Ganj BYPL Vs. Abdul Rashid 12/16 days in the designated Special Court. The inspection was carried out on 17.12.2007, however, complaint in the present case was filed on 01.07.2008 which is 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. 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).
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 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 CC No: 383/08 Police Station: Darya Ganj BYPL Vs. Abdul Rashid 13/16 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, though, CISF and local police accompanied the team during inspection, thereby violating the aforesaid regulation.
15. 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. 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. Most importantly, Sh. C. B. Sharma, officer of the company, who had filed this complaint and mentioned in the list of witnesses was not CC No: 383/08 Police Station: Darya Ganj BYPL Vs. Abdul Rashid 14/16 examined in the court either, so the complaint Ex. CW1/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 witnesses 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 CC No: 383/08 Police Station: Darya Ganj BYPL Vs. Abdul Rashid 15/16 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 court qua the theft bill raised by the company on the basis of inspection dated 17.12.2007 be released by the company after expiry of period of appeal.
File be consigned to record room.
Announced in open court ( Arun Kumar Ayra )
ASJ/Special Court (Elect.)
Tis Hazari/Delhi/05.02.2015
CC No: 383/08
Police Station: Darya Ganj
BYPL Vs. Abdul Rashid 16/16