Delhi District Court
Through : Sh. Jitender Shankar vs . on 10 February, 2015
IN THE COURT OF SHRI ARUN KUMAR ARYA,
ADDITIONAL SESSIONS JUDGE, SPECIAL COURT
(ELECTRICITY), TIS HAZARI COURT, DELHI
CC No. 28/08
Unique case ID No.02402R0854882008
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.
Washim
R/o: 74 - 76, Bela Road,
Near Shanti Van Chowk,
Darya Ganj, Delhi ................ Accused
Through: Sh. Ashutosh Gupta, Ld. counsel for the accused.
Date of Institution : 08.01.2008
Judgment reserved on : 04.02.2015
Date of Judgment : 10.02.2015
Final Order : Acquitted
CC No: 28/08
Police Station: Darya Ganj
BYPL Vs. Wasim 1
JUDGMENT
1. As per complaint, on 01.10.2007 at about 07:05 PM, as per direction given by manager O & M, Darya Ganj, a joint raid was conducted by staff of BSES Yamuna Power Ltd comprising of Sh. N. K. Kaushal (AM), Sh. R. K. Tyagi (Engg.) and Sh. Anand Kumar (Engg.) along with Delhi Police Staff, lady guard at the premises bearing no. 74 - 76, Bela Raod, Near Shanti Van, Dariya Ganj, Delhi (to be referred as "Premises" hereinafter). At the time of inspection, user was found stealing the electricity by directly tapping the BSES service line through 2 core cable. No meter was found at site. The accused was illegally, unauthorisedly and dishonestly using the electricity for the Industrial Purpose to the tune of 6.800 KW.
As per procedure, Sh. S. N. Saxena Authorized Officer was called at site. The articles such as: (a) 2 core Al PVC Cable of Size 10 MM, black colour, 1 pcs, .85meter, black colour, (b) PVC Cu wire of size 3/22 SWG, White colour, 1 pcs, .90 meter were seized from the spot. The accused was booked for the offence of direct theft of electricity. Subsequently, theft assessment bill for sum of Rs.2,17,500/ was raised against the accused. On the failure of accused to deposit the same, present complaint was filed against CC No: 28/08 Police Station: Darya Ganj BYPL Vs. Wasim 2 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 24.01.2008 after presummoning evidence. Notice U/S 251 Cr.P.C of offence punishable U/S 135 and 151 of Electricity Act, 2003 was framed against the accused by my ld. predecessor vide order dated 06.01.2009 to which he pleaded not guilty and claimed trial.
4. Complainant in support of its case examined three witnesses i.e PW - 1 Sh. Rajeev Ranjan (Authorized Representative), PW - 2 Sh. N.K. Kaushal (DGM) and PW - 3 Sh. R. K. Tyagi (Engineer). Accused examined himself as DW - 1. CC No: 28/08 Police Station: Darya Ganj BYPL Vs. Wasim 3 PW - 1 Sh. Rajeev Ranjan deposed that the present complaint Ex. CW1/B was filed by Sh. C. B. Sharma. He was authorized vide letter of authority in his favour Ex. CW1/A1.
PW - 2 Sh. N. K. Kaushal deposed that on 01.10.2007, he was posted at Darya Ganj office as Senior Manager. On that day, as per the instruction of the DGM and also as per routine checkup, he along Sh. R.K. Tyagi - Engineer and Sh. Kedar Nath - Fitter conducted a raid at the premises bearing No.74/76, Jagannath Mandir Compound, near Shanti Van Chowk, Delhi.
At the time of inspection, accused was found indulging in direct theft of electricity from the old service line of the company. The accused used the connected load to the tune of 6.8 KW for IX purpose. Photographs (Ex. CW 2/D) qua the connected load and theft of electricity were taken and CD containing these photography (Ex. CW 2/E) was placed on record. Inspection Report Ex. CW 2/A and load report Ex. CW 2/B, reports bore his signature at point X. As per the procedure, he telephonically informed Sh. S.N. Saxena - Manager (O&M) for the purpose of seizing the material which was being used for the purpose of theft of electricity. He reached the premises and seized the material vide seizure memo Ex. CW2/C bores his signature at point X. Witness identified the case property as Ex. P1 and Ex. P2.
CC No: 28/08 Police Station: Darya Ganj BYPL Vs. Wasim 4 PW - 3 Sh. R. K. Tyagi deposed that on 01.10.2007, he along with Sh. N. K. Kaushal, Sh. Kedar Nath and police force of concerned Police Station Darya Ganj, Delhi conducted raid at the premises bearing no. 7476, Jagannath Mandir, Bela Road, Near Shanti Van Chowk, Darya Ganj, Delhi and deposed on the lines of PW - 2.
DW - 1 Sh. Wasi Akhtar deposed that he is the resident of 7476, Jaganath Mandir, Darya Ganj, New Delhi. He proved his driving licence issued on 17.02.2006 as Ex. DW 1/1, the registration certificate of his motor cycle bearing number as DL1SR 4006 (Ex. DW 1/ 2), the documents pertaining to the electricity connection bearing K No: 112028300360 installed at 7476, Bela Road, Darya Ganj Ex. DW 1/3 (colly). The electricity consumption for the month of August 2007 as shown in Ex. DW 1/3 was 1746 units at point "A". The present case was booked against one Wasim and not against him. The premises bearing no. 7476, Jaganath Mandir, Darya Ganj, Delhi was a big plot having many building / structure with same municipal address. He has been paying the electricity consumption charges.
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 CC No: 28/08 Police Station: Darya Ganj BYPL Vs. Wasim 5 premises.
6. Sh. Ashutosh Gupta, Adv. for the accused had argued that accused was falsely implicated in this case and company failed to bring any incriminating material against him. In the complaint it was contented that no meter was installed at site, however, accused has proved connection installed in his name at the premises bearing no. 74 - 76 GF, Bela Road, Opp, New Kotwali, Darya Ganj. Accused has also proved his identity as Wasi Akhtar by placing on record the driving license issued much before the date of inspection.
Counsel for the accused further urged that no evidence was seized to show that the premises inspected by team was being used by Wasim or Wasi Akhtar. Name of the accused was only mentioned by the team only at the instance of one worker. No independent witness or police officers who were with the team were examined by the company.
During cross examination, PW2 admitted that he had no written directions from the DGM to the conduct the inspection. No force or obstruction caused by the persons / workers present at site. He had not noted down the name of the person who told him the user of the premises. Other dwelling units which were adjacent to the premises were also having the same address. He did not inquire from CC No: 28/08 Police Station: Darya Ganj BYPL Vs. Wasim 6 his department whether there was any meter issued / sanctioned / installed at the premises. The photographs did not depict the address of the premises. He had not noted down the load by measuring through tong - tester or any other load measuring equipment. He had not seized any material or documentary evidence which shows that premises was used by accused Wasim.
PW - 3 Sh. R. K. Tyagi, admitted that verbal instructions were given to conduct the raid. One worker disclosed the name of the user at site, but he did not remember the name of that worker. The team did not collect any material evidence to ascertain the user / occupier / owner of the premises was Wasi Akhtar.
No public person was made as a witness. The person present at site refused to receive or paste the reports at site why the said fact was not reported to the police when they were with the team. 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 CC No: 28/08 Police Station: Darya Ganj BYPL Vs. Wasim 7 prove its case so, accused is entitled to be acquitted in this case.
7. Per contra, counsel for company has argued that during inspection, no meter was found installed at site and accused was found stealing the electricity by directly tapping of BSES service line through 2 core cable. The theft was being used by the accused for IX purpose to the tune of 6.800 KW. Illegal material was used for the abstraction of the electricity from the system of the company was seized as the material evidence vide a seizure memo (Ex. Ex. CW 2/C) by Sh. S. N. Saxena. At the time of inspection visual recording showing the irregularities was conducted by member of raiding team through digital camera. The accused was booked for offence of direct theft of electricity. As per deposition of PW2 and PW3, 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.
PW - 2 and PW - 3 both admitted that several premises situated near the premises having the same municipal numbers. Company has not procured any documents which shows that CC No: 28/08 Police Station: Darya Ganj BYPL Vs. Wasim 8 premises was used by Wasim or Wasi Akhtar. Company has noted down the name of the accused only at the instance of worker present at the spot. Company has not mentioned the name of worker, even he was not examined by the company in the court. This type of evidence tendered by witnesses can be simply termed as "Hearsay Evidence" and has no evidentary value. Reference is placed on judgment of Hon'ble High Court of Delhi in Crl. L.P No. 598/2013 titled as BYPL Vs. Guddu dated 21.01.2014.
As per complaint, pre - summoning evidence and depositions of witnesses examined in the court, mentioned that photographs videography was conducted by member of raiding team, but none of the witnesses deposed 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/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 CC No: 28/08 Police Station: Darya Ganj BYPL Vs. Wasim 9 that requisite certificate U/S 65 B is required to be produced in evidence in the court.
The company failed to examine Sh. S. N. Saxena (who was the crucial witness as on his instructions, illegal material was removed and seized) and Sh. Kaidar nath who was 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.
In the inspection report (Ex.CW2/A) in column no.2.2 name of the user is Washim ("as stated"), however, it was not specified as to who disclosed the name of accused. The person who disclosed the name of accused was not examined in the court nor his name was mentioned in the reports. PW - 2 admitted that photographs (Ex. CW 2/D) did not depict the address of the premises. CC No: 28/08 Police Station: Darya Ganj BYPL Vs. Wasim 10
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 Wasim or Wasi Akhtar 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.
The case was booked against Wasim, whereas, accused CC No: 28/08 Police Station: Darya Ganj BYPL Vs. Wasim 11 who examined himself as DW - 1 proved his identity as Wasi Akhtar by proving his documents in the court in the name of Wasi Akhtar. As per para no. 7 of the complaint, it is contented that no meter was found installed at site, however, accused proved the existence of K no. 112028300360 installed at 7476, Bela Road, Darya Ganj (Ex. DW 1/3).
The Hon'ble Delhi High Court in Crl. M.C. 2296/2008 titled as BRPL & Ors. Vs. Ishwar Chand & Anr. dated 10.02.2009 has issued certain guidelines to the electricity companies videograph the sign boards of the name plates as well as the accuracy of inspected address with nearby landmark. It was also directed to videograph the person who met with the raiding team at site and on whose instance the name of accused was written in the inspection report. An office order bearing no. BSES/RPL/HOD/001 dated 30.08.2008 already exists in this respect. Company has failed to prove adhere to abovesaid guidelines.
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 filed on 08.01.2008 after about 3 months of inspection. Prompt and early reporting of the occurrence by the informant with all CC No: 28/08 Police Station: Darya Ganj BYPL Vs. Wasim 12 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).
The reports prepared at site were only signed by two members i.e. Sh. N. K. Kaushal and Sh. R. K. Tyagi, however, team also consisted of Sh. Kedar Nath, who never signed on the reports, The person present at site refused to receive or paste the reports at site how a person refused to receive / paste the same at the premises in the presence of police. As per Regulation 52 (ix) of Delhi Electricity Supply Code and Performance Standards Regulations 2007, as per this regulation repors must be signed by each member of the raiding team and also in case of refusal of the reports, by the consumer or his /her representative to either accept or give a receipt, copy of inspection report must be pasted a a conspicuous place in / outside the premises.
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 CC No: 28/08 Police Station: Darya Ganj BYPL Vs. Wasim 13 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.
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 twenty - four hours from the time of such disconnection.
The company has not lodged any FIR in this case, with the local police, thereby violating the aforesaid regulation.
14. 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. CC No: 28/08 Police Station: Darya Ganj BYPL Vs. Wasim 14 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 examined in the court either, so the complaint Ex. CW1/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 case of theft, that has a negative impact on the merit of a case.
16. In the present case, company has not proved the case by positive evidence as the testimony of PW2 and PW3 have material contradictions which are already observed in the CC No: 28/08 Police Station: Darya Ganj BYPL Vs. Wasim 15 foregoing paras. Moreover, 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, she 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 01.10.2007 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/10.02.2015
CC No: 28/08
Police Station: Darya Ganj
BYPL Vs. Wasim 16