Delhi District Court
Bypl vs . Jeet Singh & Anr. on 1 October, 2014
CC No: 747/08
Police Station: Patel Nagar
BYPL Vs. Jeet Singh & Anr.
IN THE COURT OF SHRI ARUN KUMAR ARYA,
ADDITIONAL SESSIONS JUDGE, SPECIAL COURT
(ELECTRICITY), TIS HAZARI COURT, DELHI
CC No. 747/08
Unique case ID No.02402R0083362009
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.
1. Jeet Singh (User)
2. Khem Chand (User)
Both at: 7081, S/F, Mata Rameshwari,
Nehru Nagar, Dev Nagar,
Karol Bagh, Delhi
Through: Sh. Yogender Singh Chaudhary, Adv.
for accused
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CC No: 747/08
Police Station: Patel Nagar
BYPL Vs. Jeet Singh & Anr.
Date of Institution ............. 17.11.2008
Judgment reserved on .............. 30.09.2014
Date of Judgment ............. 01.10.2014
Final Order ............. Acquitted
JUDGMENT
1. The brief facts of the case are that on 14.07.2008 at 02:20 PM a joint inspection team consisted of Sh. S. C. Gupta (Assistant Manager), Sh. Suresh Chand (DET), Sh. Bharat Bhushan and Sh. Umesh Kumar (both lineman) of the complainant company (to be referred as "company" hereinafter) i.e. BSES Yamuna Power Ltd conducted a raid at the premises which were allegedly to be used and occupied by the accused namely Jeet Singh and Khem Chand (Users) at 7081, S/F, Mata Rameshwari, Nehru Nagar, Dev Nagar, Karol Bagh, Delhi (to be referred as "premises" hereinafter).
The accused persons were found indulging in direct theft of electricity through illegal tapping from BSES service cable being used for commercial purpose to the tune of 4.995 KW. A shoe nd making unit was running on the 2 floor. No meter was found at site. Raiding team took the necessary photographs and visual footage of the connected load and the mode of theft. Two pieces of PVC red colour wires, measuring two mtr in length were seized in the raid. Inspection report, load report and seizure memo tendered at site and offered to the accused persons but they refused to sign the same. An Page 2 of 13 CC No: 747/08 Police Station: Patel Nagar BYPL Vs. Jeet Singh & Anr.
assessment bill for theft of electricity was raised against the accused persons which remained unpaid.
2. Hene, the complaint 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 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 persons were summoned for the offence U/S 135 of the Electricity Act 2003 by my ld. predecessor vide order dated 12.01.2009. Notice U/S 251 Cr.PC of offence punishable U/S 135, 150 and 151 of Electricity Act, 2003 was framed against the accused persons by my ld. predecessor on 27.04.2010 to which both accused persons pleaded not guilty and claimed trial.
4. Complainant in support of its case examined 2 witnesses namely PW - 1 Sh. Rajeev Ranjan and PW - 2 Sh. S. C. Gupta. Accused no. 1 (Jeet Singh) was acquitted by this court vide order dated 15.09.2014 as no incriminating evidence was led against him by the company.
PW - 1 Sh. Rajeev Ranjan deposed that the present complaint Ex.CW1/A was filed by Sh. C. B. Sharma. The company executed a power of attorney in his favour Ex. CW1/B. Page 3 of 13 CC No: 747/08 Police Station: Patel Nagar BYPL Vs. Jeet Singh & Anr.
PW - 2 Sh. Satish Kumar, deposed that on 14.07.2008 at about 02:20 PM, he along with Sh. Suresh Chand (DET), Sh. Bharat Bhushan and Sh. Umesh Kumar conducted a raid at the premises bearing no. 7081, S/F, Mata Rameshwari, Nehru Nagar, Dev Nagar, Karol Bagh, Delhi.
At the time of inspection, user namely Khem Chand tenant of Jeet Singh was found indulging in direct theft of electricity from BSES service cable by illegal tapping. No meter was found at site. The connected load to the tune of 4.995 KW was used for commercial purpose.
The inspection report (Ex. CW2/A) and load report (Ex. CW 2/B) were prepared. Photographs were taken by team (Ex. CW 2/D) and CD (Ex. CW2/D1). All the reports were offered to the representative of the accused, who refused to sign the same and did not allow to paste the same.
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. Parveen Yadav, Adv. for the accused has argued that accused is falsely implicated in this case and there is no incriminating evidence against him. He submitted that no inspection was carried out at the premises as alleged, no documents like Page 4 of 13 CC No: 747/08 Police Station: Patel Nagar BYPL Vs. Jeet Singh & Anr.
inspection report, load report, seizure memo etc. were prepared at the spot. The representative who was present at premises during the inspection was not mentioned by the team in the inspection report.
Counsel for the accused argued that entire case of the company was based on the hearsay evidence. Neighbor / public persons were not made as a witness in inspection report as well as at the time of seizing of material evidence. Address of the premises was also not shown in the photographs. Company has not made the person as an accused who was shown in the photographs. It was requested that company had failed to prove its case on all counts so, accused was entitled to be acquitted in this case.
6. Per contra, counsel for complainant has argued that accused was indulging in direct theft of electricity through illegal tapping from BSES service line. Accused used the load to the tune of 4.995 KW for commercial purpose. Necessary photographs and visual footage of the connected load and direct theft was taken by the raiding team.
As per deposition of complainant witnesses, the company has been able to prove its case against the accused beyond reasonable doubt. Accordingly, accused is liable to be convicted in this case.
7. I have gone through the ocular / documentary evidence Page 5 of 13 CC No: 747/08 Police Station: Patel Nagar BYPL Vs. Jeet Singh & Anr.
adduced on record and arguments advanced at bar by counsel for parties.
The name of accused no. 2 (Khem Chand) 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 subject premises were inspected by the officials of the company on 14.07.2008.
(b) Whether the theft of electricity was going on at the time of inspection.
(c) Whether accused was occupying the inspected premises at the time inspection.
The company failed to examine Sh. C. B. Sharma, Sh. Suresh Chand, Sh. Bharat Bhushan and Sh. Umesh, who were the member of the raiding team who was cited in the list of witnesses also. No explanation has been assigned for the non examination of these witnesses.
In his examination - in - chief PW 2 Sh. S. C. Gupta, stated that documents were offered to representative of the accused whereas in his cross examination that he asked the accused persons to produce the documents of ownership property. He stated that representative of the accused refused to sign the reports, however, in cross examination, he admitted that accused refused to sign the Page 6 of 13 CC No: 747/08 Police Station: Patel Nagar BYPL Vs. Jeet Singh & Anr.
report. This shows contradiction on the point of presence of accused.
No independent person was joined at the time of seizure of the case property. It is not mentioned in the inspection report that whether accused was occupying the premises in the capacity of owner or tenant. Company has not examined the person who was shown in the photograph and was present at the premises at the time of inspection. 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 inspection report (Ex. CW 2/A) states the user as Khem Chand ("as stated") but it does not specify as to who told them the name of the accused whether it was accused or somebody else. The representative were not examined by company in the court and no investigation was carried out by police in this respect. No inquiry in this respect was conducted by the company before the filing of the complaint. It is on record that the company did not procure the document pertaining to occupancy or the ownership of the premises. No independent witness was examined to prove the occupancy of premises by accused otherwise. Reliance is placed on the recent judgment of (Hon'ble High Court in Crl. L. P. No. 598/2013 decided on Page 7 of 13 CC No: 747/08 Police Station: Patel Nagar BYPL Vs. Jeet Singh & Anr.
21.01.2014 titled as BSES Yamuna Power Ltd. Vs. Guddu) in which accused was held to be rightly acquitted by trial court in aforesaid facts.
The company was under obligation to prove as to who was the actual possession of the premises at the time of inspection and same was not done. So, as per the 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 does not fall within the ambit of "WHOEVER" as enumerated U/S 135 of the Electricity Act, 2003.
Site plan prepared by the member of the raiding team was required to be proved specifically however the same was not done. The company was under obligation to prove this site plan to specify the exact location of the premises.
8. Photographs were taken by team members but PW 2 did not depose before the court that who actually took the same. The person 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/D1) placed on record is of Page 8 of 13 CC No: 747/08 Police Station: Patel Nagar BYPL Vs. Jeet Singh & Anr.
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.
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 17.11.2008 after approximately 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'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).
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CC No: 747/08 Police Station: Patel Nagar BYPL Vs. Jeet Singh & Anr.
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 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. Page 10 of 13
CC No: 747/08 Police Station: Patel Nagar BYPL Vs. Jeet Singh & Anr.
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. 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 Page 11 of 13 CC No: 747/08 Police Station: Patel Nagar BYPL Vs. Jeet Singh & Anr.
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 subject premises. No evidence is led to prove whether accused was owner / tenant / occupant or unauthorized occupant of the subject 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.
14. In the present case, company has not proved his 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.
In view of the foregoing reasons, company has failed to prove its case against the accused no. 2 (Khem Chand) 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 Page 12 of 13 CC No: 747/08 Police Station: Patel Nagar BYPL Vs. Jeet Singh & Anr.
the basis of inspection dated 14.07.2008 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/01.10.2014
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