Delhi District Court
Bypl vs . Riyazuddin Ansari & Ors on 28 February, 2013
CC No. 584/07
BYPL Vs. Riyazuddin Ansari & Ors
IN THE COURT OF SH. ARUN KUMAR ARYA
ADDITIONAL SESSIONS JUDGE, SPECIAL COURT, (ELECTRICITY),
TIS HAZARI COURT, DELHI
Complaint Case No : 584/07
Unique Case ID No. : 02402R0851912008
BSES Yamuna Power Limited
Having its registered office at:
Shakti Kiran Building, Karkardooma,
Delhi-110032
Acting through its Authorized Officer,
Shri Jitender Shankar
..............Complainant
Versus
1. Riyazuddin Ansari (user)
XIV/1074, GF, III floor, Bartan Market,
Sadar Bazar, Pahar Ganj, Delhi
2. Sanjay Gupta (Reg. consumer)
XIV/1074, GF, III floor, Bartan Market,
Sadar Bazar, Pahar Ganj, Delhi
................Accused
Complaint instituted on : 31.03.2006
Judgment reserved on : 20.02.2013
Judgment pronounced on : 28.02.2013
JUDGMENT
1. The complainant is a company incorporated under the Companies Act, 1956 ( to be referred as "company"
Page 1 CC No. 584/07 BYPL Vs. Riyazuddin Ansari & Ors hereinafter) having its registered office at Shakti Kiran Building, Karkardooma, Delhi - 110032 and having its branch office at different places in Delhi. The company is the licensee for supply of electricity in major parts of Delhi, including the premises bearing No. XIV/1074, GF, II Floor, Bartan Market, Sadar Bazar, Pahar Ganj, New Delhi where the offence has been allegedly committed by the accused. The present case was filed through Sh. Jitender Shankar, Authorized Officer. Later on Sh. C.B. Sharma on 30.08.2007, and after him Sh. Rajeev Ranjan on 13.11.2009 was substituted as authorized representative by order of this court.
2. As per complaint, on 28.01.2006 a team comprising of (i) Sh. V.P.Singh ( Assistant Manager ), (ii) Sh. R.P.Sharma, JE, (iii) Sh. Akhilesh Kumar (GET) conducted a inspection / raid at premises bearing No. XIV/1074, GF, II Floor, Bartan Market, Sadar Bazar, Pahar Ganj, New Delhi. The accused no. 1 and 2 were found to be user and registered consumer at the above said premises. The accused were found to be the user and indulging in direct theft of electricity by bypassing the meter abstracting it directly from the incoming service line through 7/20 SWG copper wire using a PVC wire. The premises consisted of four floors including the ground floor. The meter bearing no. 218531 bypassed was installed near the stairs. The total connected load which was illegally used by the accused for industrial purpose was assessed by the inspection team as 5.762 KW/IX. A load report was also prepared at the time of inspection.
Page 2 CC No. 584/07 BYPL Vs. Riyazuddin Ansari & Ors
3. During the course of the inspection, the officials of the company (Sh.K.K.Sharma) clicked photographs of illegal tapping and connected load with the help of digital camera. During the course of inspection, the raiding team in presence of Sh.S.K.Gajbhiye, Manager seized two black colour copper wire, 7/20 SWG, each 10 mtr in length, electro mechanical meter bearing no. 218531, type K-12 (10-40 Amp), reading-3904, one wooden board 8x12 inches vide seizure memo Ex.CW2/3. Subsequently, theft assessment bill in the sum of Rs.2,27,312/- was raised against the accused. On the failure of the accused to deposit the same, present complaint was filed against the accused.
4. The accused was summoned U/s 135 r/w Section 151 of the Electricity Act 2003 by my ld. predecessor vide order dated 09.06.2006 after recording the pre - summoning evidence. As accused Riyazuddin Ansari did not appear in the court, consequently he was declared proclaimed offender by order dated 23.09.2010 of my ld. predecessor.
Notice u/s 251 Cr.PC of offence punishable u/s 135 and 151 of Electricity Act, 2003 was framed against the accused no.2 Sanjay Gupta by my ld. predecessor Court vide order dated 27.10.2010 to which accused pleaded not guilty and claimed trial.
5. Complainant in support of its case examined 4 Page 3 CC No. 584/07 BYPL Vs. Riyazuddin Ansari & Ors witnesses namely PW-1 Sh. Rajeev Ranjan (Authorized representative), PW-2 Sh.V.P. Singh (Sr. Manager), PW-3 Sh. R.P.Sharma (Sr. Manager) and PW-4 Sh.S.K. Gajbhiye (ASVP). Per contra, accused examined himself as DW-1 in his defence.
PW- 1 Sh. Rajeev Ranjan deposed that the present complaint Ex.CW1/A was filed by Sh.Jitender Shankar. Later on, he was authorized to represent this case vide letter of authority in his favour Ex. PW-1/A. PW-2 Sh. V.P. Singh, Senior Manager deposed that on 28.01.2006, he was posted at Enforcement Branch, Gandhi Market as a Assistant Manager. On that day at about 6.00pm., as per direction of Manager Enforcement a joint team comprising of himself, Sh. R.P.Sharma (JE) and Sh. Akhilesh Kumar (GET) visited the premises bearing no. XIV/1074, Ground Floor, Bartan Market, Sadar Bazaar, Pahar Ganj, Delhi and conducted a raid. During the course of inspection user Mohd. Riyasuddin Ansari was found indulging in direct theft of electricity from service line through 7 / 20 SWG copper wire in PVC pipe used at 3rd floor for industrial purpose.
At the time of inspection, the team assessed the connected load which was found running directly to the tune of 5.762 KW for industrial purpose and 0.140 KW was found running on meter bearing no. 218531. The total connected load was found to the tune of 5.902 KW.
Page 4 CC No. 584/07 BYPL Vs. Riyazuddin Ansari & Ors At the time of inspection, they prepared inspection report along with meter detail report Ex. CW-2/A (colly), load report Ex. CW 2/B (colly), seizure memo Ex. CW 2/C, which bore his signatures at point 'A' and signature of Sh. R.P. Sharma at point 'B' and signature of Sh. Akhilesh at point 'C' on each and every page.
They took the photographs Ex. CW-2/D (colly) and true copy of CD Ex. CW-2/D1. After that they removed the meter, seized the same by putting his seal on the gunny bag and deposited at Yogna Vihar Office. They offered the entire inspection reports to user Mohd. Riyasuddin Ansari but he refused to sign the did not allow to paste the same.
The meter in the photographs Ex.CW2/B bearing no. 218531 was registered in the name of accused Sanjay Gupta and seized on 28.01.2006. At the time of raid connected load 0.14 IX was drawn from the meter bearing no. 218531 and 5.762 KW/IX was drawn by illegal wires of size 720 SWG of black colour. The case property was shown to him who identify the same as Ex.P1 to Ex.P3.
PW-3 Sh. R.P Sharma, Senior Manager deposed that on 28.01.2006, he was posted as a Junior Engineer at Enforcement Gandhi Market. On that day, as per direction of Manager Enforcement a joint team comprising of himself, Sh. V P. Singh ( AM ) and Sh. Akhilesh Kumar ( GET ) inspected the premises bearing no. XIV/1074, Ground Floor, Bartan Market, Sadar Bazar, Pahar Ganj, Delhi at about 6.00PM.
Page 5 CC No. 584/07 BYPL Vs. Riyazuddin Ansari & Ors This witness deposed on the similar lines as that of PW-2 as far as preparation of reports, seizure memo, signing the same, taking of photographs and depositing the case property in Yogna Vihar office are concerned.
PW-4 Sh. S. K. Gajbhiye deposed that on 28.01.2006, he was posted as Manager at Gandhi Market Enforcement office and received a telephonic call from assessing officer Sh. V. P. Singh that they have detected theft of electricity from the premises 14/1074, Bartan Market, Sadar Bazar, Delhi. He reached at site at around 6:15 PM and members of raiding team shown him the mode of theft. The GET (Trainee Engineer ) removed the meter, illegal wire and one wooden box from the site. He seized all the above said material from the site and assessing team prepared inspection report, load report etc.
6. In his statement recorded u/s 313 Cr.PC, accused has denied the allegation and stated that he is innocent and has been falsely implicated in the present case. There was no raid conducted in his premises as he was the owner of the two rooms of the above said premises on 4th floor only.
7. DW-1 Sanjay Gupta deposed that he was the tenant of the fourth floor of the premises no. XIV/ 1074, Bartan Maket, Sadar Bazar, Delhi and was having rent receipt regarding his tenancy. There were two rooms in his possession at fourth floor. He has produced the rent receipt for the period 01.12.2001 to 31.03.2010 Page 6 CC No. 584/07 BYPL Vs. Riyazuddin Ansari & Ors ( running into 12 pages ) of 4th floor. The photocopies of the said receipts are already Ex. DW 1/A to DW 1/L. He came to know about the present case from the police station. He had no knowledge regarding any inspection of theft at the subject premises. In the year 2006, his tenancy rooms were closed. The meter was installed in his name at his tenanted premises. He had filed the photocopy of regular electricity bill for the month of September 2006, May 2006, July 2007, November 2007, May 2007, December 2010 and February 2012 Ex. as DW 1 / 3 ( 7 pages).
8. Ld. Counsel for the accused has argued that no raid was conducted at the premises belonging to the accused and the case is purely based on hearsay evidence.
In the cross examination PW-2 deposed that the premises in question comprised of Ground, First, Second and Third Floor and the theft was being conducted at Third Floor. The electricity meter Ex. P1 was installed at the ground floor. He could not tell as to how many meters were installed at the ground floor. The electricity was stolen from the service line directly and 5.762 KW load was connected directly and 0.140 KW was running through meter. But it was not mentioned from whose service line the theft was being committed. He had also taken the photographs of meter Ex. P1. The witness has pointed out the photographs of the meter in photographs (already Ex. CW 2/D) which is mark "X".
Page 7 CC No. 584/07 BYPL Vs. Riyazuddin Ansari & Ors Sh. S.K. Gajbhiye, Manager Enforcement was given the information about the theft being committed at the given premises. He could not tell the joint / spot on the photographs placed on record from where the theft was being committed.
No written permission was filed on record. They did not inform local police about conducting of raid. Accused Riyazuddin was rd found at 3 floor of the premises at the time of inspection and he disclosed his own identity. He did not inquire about the identity of the accused Riyazuddin from the neighborers. The witnesses did not identify the accused Sanjay Gupta. They cannot tell the relation between the Sanjay Gupta and Riyazuddin. The name of Sanjay Gupta was not mentioned in the inspection reports.
The case property was seized on the instruction of Sh. S.K. Gajbhiye who appeared at the site on telephonic call. All the members signed the entire inspection report mentioning the date of inspection however, Sh. S.K. Gajbhiye did not mention the date of inspection below his signature on the seizure memo which cast doubt on the inspection report.
The alleged illegal wire was connected prior to the meter in service cable. The photographs marked as "X" shows the mode of alleged theft. The black color service cable was attached with the pole. After seeing the photograph on CD, witness admitted that the cut mark in the service line was before the meter from where the theft was Page 8 CC No. 584/07 BYPL Vs. Riyazuddin Ansari & Ors being committed and is shown in the photograph at point Y. The public present at site created hindrance to conduct the raid properly whereas no photograph shows the public hindrance during the inspection. In the cross examination PW-4 deposed that there is no photograph on record showing him seizing the case property. There is no photograph of the joint from where the theft was being committed. No independent person was joined at the time of seizure of case property. They did not verify the documents of ownership in order to find the name of owner or the occupier.
Ld. Counsel for the accused further contended that accused himself had applied for a meter connection at the premises XIV/1074, Bartan Market, Sadar Bazar, Delhi. However the meter was installed at the ground floor in the year 2006. He had a godown at the above said premises at 4th floor consisting of two rooms. He used to receive electricity bills for the said meter no. 218531 in his name. He applied for the connection of 4th floor. The premises bearing no. 9230 ground floor, Tokriwalan, Azad Market, is in the name of his father and electricity connection/ bills are also in his name. Meter no. 218531 was removed on 28.01.06.
The seizure memo did not bear the signature of any independent witnesses. He further urged that the company had not examined the witnesses in this case i.e Sh.Akhilesh Kumar ( GET ) and K.K.Sharma and other witnesses as cited in the list of witnesses filed Page 9 CC No. 584/07 BYPL Vs. Riyazuddin Ansari & Ors by them. Withholding this independent witnesses who were member of the raiding team in a criminal case has left a major dent / suspicion in the case of the company. He further argued that the cables recovered from the site was 15 feet each however on cross examination of VP Singh he deposed that length of seized wire was of 10 m each.
In the pre summoning evidence of PW-2 Sh.V.P.Singh, deposed that accused signed the inspection report and the seizure memo, however, in the chief examination recorded on 07.04.2011 he deposed that accused refused to sign the same. He further deposed in his pre summoning evidence that photographs were taken by K.K.Sharma, however, in chief examination of both the witnesses they deposed that photographs were taken by them. K.K.Sharma was neither named by both the witnesses as member of inspection team nor he was examined by the company.
9. It was further submitted that the accused has been falsely implicated by the company. It is also pointed out that as per Regulation 52 (vii) Delhi Electricity Supply Code and Performance Standards Regulations, 2007, the complaint was not filed within 2 days from the date of inspection. So there was lot of time with the company for improvement and embellishment in the case. It was requested that company has failed to prove its case against the accused and he should be acquitted in this case.
10. Per contra, Counsel for complainant has argued Page 10 CC No. 584/07 BYPL Vs. Riyazuddin Ansari & Ors that accused committed direct theft of electricity by bypassing the meter and taking electricity directly from the incoming service line through 7/20 DWG copper wire using a PVC wire. The entire load was running directly bypassing the meter through the BSES system. PW-2 Sh. V.P.Singh and PW-3 R.P.Sharma ( both Senior Manager) who were member of the raiding team has duly proved the case. It is therefore, argued that complainant case is proved beyond reasonable doubt and accordingly, accused is liable to be convicted in this case.
11. I have gone through the ocular/ documentary evidence adduced on record and arguments advanced at bar by counsel for parties.
12. The principles of fastening criminal liability is different than that of civil liability in case the use of electricity. The language of Section 135 of Electricity Act even if considered as it is, it refers to whoever and the same would mean a person who is involved in the commission of offence. It is true that the essential purpose of the enactment of the Act and more particularly Section 135 of the Act is to book the offenders, who are committing theft of electricity, but there cannot be any intention of the legislature to punish the persons other than the offenders.
13. It was not mentioned in the inspection report Page 11 CC No. 584/07 BYPL Vs. Riyazuddin Ansari & Ors whether the accused was occupying in the capacity of tenant or owner. No inquiry in this respect was made by the inspection team.
14. This inspection was carried out in the year 2006, the complainant company was under obligation to carry a written authority signed by designated officer of the licensee as per Regulations 25 (i) of the Delhi Electricity Regulatory Commission ( Performance Standards - Metering and Billing ) Regulations, 2002, which they failed to do and no such authority was placed on record.
15. As per Regulation 25 (vii) Delhi Electricity Regulatory Commission (Performance Standards Metering and Billing) Regulations, 2002, the report must be signed by each member of the joint team and as per Regulation 52 (ix) of Delhi Electricity Supply Code and Performance Standards Regulations 2007 "the report shall be signed by the Authorized Officer and each member of the inspecting team". Sh.K.K. Sharma member of raiding team as per complaint, who took photographs of the site with digital camera did not sign the inspection report. The non signing of the inspection report by all the member of raiding team was not in conformity with the above said regulation.
16. There is nothing on record to show who was the Page 12 CC No. 584/07 BYPL Vs. Riyazuddin Ansari & Ors Authorized Officer competent to make this inspection. The Notification dated 31.03.2004 issued in the name of Lt. Governor of the National Capital Territory of Delhi designates, for a period of one year from the date of issue of this notification authorizes, the technical official of the rank of Manager / Executive Engineer and above in this respect. As per this notification Sh. V.P.Singh and Sh. R.P.Sharma cannot be said to be the authorized officer as their ranks at the time of raid was of Assistant Manager.
17. As per Regulation 52 (i) to (iv) of Delhi Electricity Supply Code and Performance Standards Regulations 2007 "An Authorized officer duly appointed and in the list of Authorized officers published by licensee can inspect the premises and prepare reports". The absence of such an authorized officer creates materially irregularity on the part of company which goes to root of this case.
18. DW-1 categorically deposed in his cross examination that he had applied for a meter connection at the premises XIV/1074, Bartan Market, Sadar Bazar, Delhi and the meter was installed at the ground floor in the year 2006. He had a godown at the above said premises at 4th floor consisting of two rooms. He used to receive electricity bills for the said meter no. 218531 in his name. He applied for the connection of 4th floor. The premises bearing no. 9230 ground floor, Tokriwalan, Azad Market, is in the name of his father and electricity connection/ bills are also in his name. Meter no. 218531 was Page 13 CC No. 584/07 BYPL Vs. Riyazuddin Ansari & Ors removed on 28.01.06.
In this context an inquiry on behalf of company was necessary to verify as to who was in actual possession of the premises raided by the company on 28.01.2006.
19. The company has failed to prove the relation between the Sanjay Gupta and Riyazuddin. Neither the name of accused Sanjay Gupta has been mentioned on the inspection reports nor any incriminating evidence has come on record against him. The witness failed to identify the accused Sanjay Gupta. No independent person was joined at the time of seizing of case property. The local police was also not informed prior to conducting the raid.
20. The wire which was coming in the meter from the pole is black colour service cable and the tapping / cut point on the service line in the photograph mark D and Y is the yellow colour service cable. The witness pointed out the direct theft wire at point A and B which was connected to the service line in the photograph mark D is the shadow of blue wire.
21. In the cross examination of PW-2 It was observed by the court that Mark D in the photograph Ex. CW2/D is the shadow of blue wire. However, the witness has stated that it was seized wire. The illegal wire which was seized from site is not of length from ground floor to third floor and the cables recovered from the site Page 14 CC No. 584/07 BYPL Vs. Riyazuddin Ansari & Ors was 15 feet each however on cross examination of VP Singh he deposed that length of seized wire was of 10 m each. As per complaint and pre summoning evidence of PW-2 the accused had tapped the incoming BSES Service line whereas in his deposition after notice the direct theft was committed through ' service line '. Inspection report also records the word service line, however it is no where proved that accused was tapping the service line of accused Sanjay Gupta and if accused Riyazuddin was tapping BSES service line then there is no question of accused Sanjay Gupta involved in the offence.
22. The present complaint simply suggest that as accused no. 2 was registered consumer and was abetting the offence. Accused no.1 Riyazuddin was declared proclaimed offender, my ld. Predecessor had framed notice against accused Sanjay Gupta under section 135 / 151 Electricity Act. No notice u/s 150 Electricity Act was framed against the accused.
Although conviction can be based on the testimony of a single witness which seems trustworthy and reliable. In the present case, there are material contradictions in the testimonies of all the witnesses as already discussed herein before.
23. As per the criminal jurisprudence, the prosecution has to prove its case beyond reasonable doubt on the basis of legal evidence and material on record. The prosecution has to travel a long distance between 'may be true' and 'must be true' by Page 15 CC No. 584/07 BYPL Vs. Riyazuddin Ansari & Ors legal, reliable and unimpeachable evidence before an accused can be convicted.
24. The electricity Act, 2003 is a special act enacted in order to create special courts which are competent to take cognizance of the offence committed under this act. In exercise of powers conferred by Section 50 of the Electricity Act, 2003, read with Section 57, 86 and 181 of the said Act, Delhi Electricity Regulatory Commission has made the regulations known as Delhi Electricity Supply Code and Performance Standards Regulations, 2007. The above noted regulations are mandatory and having the force of law, prescribed by a regulatory and competent authority relating to the actions of licensee and the authorities under its control.
These regulations have statutory force and as per regulation 52, 53 and 54 Special measures were added to safeguard the interest of common 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. A special act created always have special measure to avoid its misuse by the investigating agencies.
25. The company has failed to show any connection of accused with the premises in which the alleged theft was being committed. Accordingly, the company has failed to prove the charge Page 16 CC No. 584/07 BYPL Vs. Riyazuddin Ansari & Ors leveled against the accused Sanjay Gupta. For the foregoing reasons, accused Sanjay Gupta is acquitted of the offence U/s 135 of the Electricity Act, 2003. Bail bond of the accused is canceled and surety is 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.
Case be retrieved as and when accused no. 1 ( Riyazuddin Ansari ) is brought or produced before the court u/s 299 CrPC.
File be consigned to record room.
(Arun Kumar Arya) ASJ/Spl. Court (Elect) Tis Hazari/Delhi/26.02.2013 Announced in the open court Page 17 CC No. 584/07 BYPL Vs. Riyazuddin Ansari & Ors 28.02.2013 Present: Sh.Rajeev Ranjan, Authorized Representative for the complainant company.
Accused on bail.
Vide my separate judgment, dictated and announced in the open court, accused is acquitted in the present case.
Bail bond of the accused is canceled and surety is 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.
File be consigned to record room.
(Arun Kumar Arya) ASJ/Special Court (Elect.) Tis Hazari/Delhi/28.02.2013 Page 18