Delhi District Court
Bypl vs . Aarif on 17 November, 2014
CC No: 105/08
Police Station: Chandni Mahal
BYPL Vs. Aarif
IN THE COURT OF SHRI ARUN KUMAR ARYA,
ADDITIONAL SESSIONS JUDGE, SPECIAL COURT
(ELECTRICITY), TIS HAZARI COURT, DELHI
CC No. 105/08
Unique case ID No: 02402R0855992008
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.
Aarif
1218, S/F, T/F
Mohalla Raqab Ganj,
Behind Delite Cinema
New Delhi - 110002
Through: Sh. Parveen Yadav, Adv. for accused
Date of Institution ............. 22.01.2008
Judgment reserved on .............. 05.11.2014
Date of Judgment ............. 17.11.2014
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CC No: 105/08
Police Station: Chandni Mahal
BYPL Vs. Aarif
Final Order ............. Acquitted
JUDGMENT
1. The brief facts of the case are that on 22.06.2007, at about 1:15 PM, an inspection was carried out at house no. 1218, second and third floor, Mohalla Raqab Ganj, Behind Delite Cinema, New Delhi - 110002 (to be referred as "premises" hereinafter) by the officials of the complainant company (to be referred as "company" hereinafter) consisting of Manager - I Enforcemnet - I, CISF staff, and local police station Chanani Mahal staff (HC Sh. Hari Ram and Constable Om Prakash) along with Sh. R. V. Singh (AM), Mohd. Shakeel and Sh. Satveer Sharma (both lineman).
At the time of inspection no meter was found at site and accused was found indulging in direct theft of electricity by tapping illegally BSES cable wire through wire which was connected to internal house wiring. Accused was using the electricity for domestic purpose to the tune of 8.193 KW. Necessary videograhy was captured by Sh. Prahlad from M/S Arora Photo Agency. Single core copper wire, 02, 3X22 MM Sq. of 9 meter of red colour was removed and seized in the presence of Sh. D. P. Singh (Manager - I Enf. I). Reports were prepared at site but user refused to sign the reports. An assessment bill of Rs. 1,96,845/ for theft of electricity was raised against the accused which remained unpaid. Page 2 of 15
CC No: 105/08 Police Station: Chandni Mahal BYPL Vs. Aarif
2. Hence, the complaint under section 135 read with section 151 of the Electricity Act, 2003 (hereinafter referred to as "Act) against the accused was filed in this court praying that he 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 was summoned for the offence U/S 135 of the Electricity Act 2003 by my ld. predecessor vide order dated 07.02.2008. 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 on 20.02.2009 to which accused pleaded not guilty and claimed trial.
4. Complainant in support of its case examined 2 witnesses namely PW - 1 Sh. Rajeev Ranjan, PW - 2 Sh. Rajvir Singh, PW - 3 Sh. D. P. Singh and PW - 4 Sh. Satbir Sharma.
PW - 1 Sh. Rajeev Ranjan deposed that the present complaint Ex.CW1/B was filed by Sh. C. B. Sharma. The company executed a power of attorney in his favour Ex. CW1/A. PW - 2 Sh. Jitender Kumar, deposed that on 22.06.2007, he along with Mohd Shakeel (lineman), Sh. Satbeer (lineman) and CISF, local police conducted a raid at the premises bearing no. 1218, S/F, T/F, Mohalla Raqab Ganj, Behind Delite Page 3 of 15 CC No: 105/08 Police Station: Chandni Mahal BYPL Vs. Aarif Cinema, New Delhi - 110002.
At the time of inspection, no meter was found at site and accused was stealing the electricity through illegal wires from BSES service cable of other users. A connected load to the tune of 8.193 KW used by the accused for domestic purpose.
The inspection report (Ex. CW2/A) and load report (Ex. CW 2/B) were prepared and bore his signature at point A. The necessary videography was taken by Sh. Prahlad at site and CD of the same is (Ex. CW 2/D). Sh. D. P. Singh was called at site to seize the material vide seizure memo (Ex. CW 2/C).
PW - 3 Sh. D.P. Singh, deposed that on 22.06.2007, at about 02:00 PM, he received a telephonic call from Sh. R. V. Singh that team had detected a theft of electricity at the premises bearing nd rd no. 1218, 2 and 3 floor, Mohalla Rakab Ganj, Behind Delite Cinema, New Delhi110002. On his instructions, team leader removed the illegal cable i.e. two illegal single core copper wires of 3X22 Sqr. length 9mtr, red colour. Seizure memo was prepared vide seizure memo (Ex. CW 2/C) bore his signatures at point C. PW - 4 Sh. Satbir Sharma, deposed that on 22.06.2007 at about 01:50 PM, he reached at premises bearing no. 1218, Mohalla Rakab Ganj, Behind Delite Cinema along with Sh. Rajbir Singh and Mohd, Shakil. On the instruction of Sh. Rajbir Singh team leader he Page 4 of 15 CC No: 105/08 Police Station: Chandni Mahal BYPL Vs. Aarif removed the illegal copper wire of length about 9 mtr of red colour from the site. Seizure memo was prepared vide seizure memo (Ex. CW 2/C) bore his signature at point B. 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. No raid was conducted at the premises and no officials of the company ever visited his premises.
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 inspection report, load report, seizure memo etc. were prepared at the spot. Photographer Sh. Prahlad was not examined by company. Other user's details were not mentioned by the company in the reports as well as evidence adduced on record.
Counsel for accused further argued that PW - 2 Sh. Rajvir Singh admitted during his cross examination that premises was a katra / cluster type and 10 - 12 houses existed at the same address. He did not inquire about the meter installed in the entire katra. Signature of the police officials were not taken on the inspection report. No pole number or the name of any neighborers was Page 5 of 15 CC No: 105/08 Police Station: Chandni Mahal BYPL Vs. Aarif mentioned in the inspection report. He admitted that Sh. D. P. Singh was present at the time of inspection and on his instructions case property was removed, seized and sealed from the site. PW - 2 Sh. Raj Vir Singh admitted that CD was not prepared at the time inspection, this implies that same was prepared later on. Videography was done by the person from Arora Photo Studio. Memory card of digital camera was not filed on record.
PW - 3 Sh. D. P. Singh admitted in his cross examination that he was not the member of raiding team. He had not made any entry in his office regarding his departure and arrival in the present case.
During cross examination PW - 4 Sh. Satbir Sharma admitted that team officers inquired about the owner of the property from the people who were reside at the ground and first floor but he could not tell the name of that persons. No independent person joined the inspection.
Counsel for the accused argued that entire case of the company was based on the hearsay evidence. Police officials who were with the team were not made as a witness in inspection report as well as at the time of seizing of material evidence. Company has also not made the neighborers as a witness. It was requested that company had failed to prove its case on all counts so, accused was Page 6 of 15 CC No: 105/08 Police Station: Chandni Mahal BYPL Vs. Aarif entitled to be acquitted in this case.
6. Per contra, counsel for company has argued that accused was indulging in direct theft of electricity. User tapped illegally BSES cable wire through illegal tapping wire and connected to internal house wiring and using the same for the connected load. The load was found to the tune of 8.193 KW for domestic purpose. Necessary videography was captured by Sh. Prahlad from M/S Arora Photo Agency.
As per testimony 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 adduced on record and arguments advanced at bar by counsel for parties.
The company failed to examine Mohd. Shakeel, Sh. Prahlad and CISF and Delhi Police who were the member of the raiding team. No explanation has been assigned for the non examination of these witnesses.
The name of accused 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: Page 7 of 15 CC No: 105/08 Police Station: Chandni Mahal BYPL Vs. Aarif
(a) Whether the premises were inspected by the officials of the company on 22.06.2007.
(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 inspection report (Ex. CW 2/B) states the user as Aarif ("as stated") but it does not specify as to who told them the name of the accused. 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. Reliance is placed on the recent 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) in which the same was held to be fatal the case.
In the complaint, pre summoning evidence as well as in the inspection report (Ex. CW 2/A) it is mentioned that accused was using the electricity illegally by tapping BSES cable wires through illegal tapping wire connected to house wiring and used for connected load. However, on the other hand, PW - 2 Sh. Raj Vir Singh deposed during his examination - in - chief that accused stealing the electricity through illegal wires from BSES service cable of other user which is Page 8 of 15 CC No: 105/08 Police Station: Chandni Mahal BYPL Vs. Aarif totally different from the avermants of the complaint, pre summoning evidence and in the inspection report.
If the accused used the electricity through the service cable of other user then the company was under obligation to examine the other user as a witness in this case.
PW - 3 Sh. D. P. Singh deposed in his examination - in - chief that on his instructions team leader removed the illegal cable, however, PW - 4 deposed that he removed the illegal wire on the instruction of team leader Sh. Rajbir Singh, it creates contradictions as to who removed the illegal material from the spot.
It is admitted by PW - 2 in his cross examination that videography was conducted at site, but at the time of offering and pasting the reports at the site, accused who was present refused to do the same, it is very surprising if accused was present and he did not make any hindrance while the videography was done then how he refused to accept the report and did not allow the team to paste the same at premises and that too in the presence of police officials.
As per contents team also consisted of Police officials but they were not made as witnesses by the company. Neighborers were also present there but company did not mention their name or examined them in court. All the above noted facts were duly considered in the judgment of Hon'ble High Court of Delhi in Cr. L. P. Page 9 of 15 CC No: 105/08 Police Station: Chandni Mahal BYPL Vs. Aarif 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 company was under obligation to prove as to who was in actual possession of the premises at the time of inspection and same was not done. In the absence of such proof the accused did not fall within the ambit of "WHOEVER DISHONESTLY" as enumerated U/S 135 of the Electricity Act, 2003 in view of the recent judgment of Hon'ble High Court of Delhi in Crl. A. No. 816/2010 dated 22.03.2012 titled as BSES Rajdhani Power Ltd Vs. Ruggan.
As per reports prepared at site at the column of signature of consumer it is mentioned that "refused to sign" and in the report it was also mentioned that police officials were with the team, it is very surprising when team were with the police, then how a person who was present at the time of inspection as per the allegation of member of the raiding team refused to sign the report in the presence of police. Despite this fact, no FIR was lodged with the police against the accused.
As per site plan, the theft was going through BSES service line on the other hand, PW - 2 Sh. Jitender Kumar deposed in his examination - in - chief that theft was going through the wires of other users.
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CC No: 105/08 Police Station: Chandni Mahal BYPL Vs. Aarif Videography was taken by Sh. Prahlad from M/S Arora Photo Studio, but he 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/D) 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 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.
Team had not mentioned the details of the user from whose service line the accused was tapping the electricity. Team could not tell the name of owner of the entire premises. Team had not nd rd taken any documentary proof regarding the ownership of 2 and 3 floor from any land owning agency of premises in question. No public persons were made as a witness to the reports. Page 11 of 15
CC No: 105/08 Police Station: Chandni Mahal BYPL Vs. Aarif
8. 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 22.01.2008 after 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'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).
9. 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.
10. The Authorized officer who had disconnected the electricity supply of the consumer was under an obligation to file a Page 12 of 15 CC No: 105/08 Police Station: Chandni Mahal BYPL Vs. Aarif 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.
11. 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, Page 13 of 15 CC No: 105/08 Police Station: Chandni Mahal BYPL Vs. Aarif 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/B remains unproved on record.
12. 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.
13. In the present case, company has not proved his case by positive evidence as the testimony of PW - 2, PW - 3 and PW - 4 have 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 Page 14 of 15 CC No: 105/08 Police Station: Chandni Mahal BYPL Vs. Aarif prove its case against the accused 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 the basis of inspection dated 22.06.2007 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/17.11.2014
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