Delhi District Court
Bypl vs . Deepak on 12 September, 2014
CC No: 771/08
BYPL Vs. Deepak
IN THE COURT OF SHRI ARUN KUMAR ARYA,
ADDITIONAL SESSIONS JUDGE, SPECIAL COURT
(ELECTRICITY), TIS HAZARI COURT, DELHI
CC No. 771/08
Unique case ID No.02402R0009402009
BSES Yamuna Power Ltd.
Having its Registered office at
Shakti Kiran Building,
Karkardooma, Delhi-110032
(Through its authorized representative
Sh. C. B. Sharma) ............ Complainant
Vs.
Deepak
BB-343, Bagrian Basti,
Nabi Karim, Pahar Ganj, Delhi .............. Accused
Date of Institution : 24.11.2008
Judgment reserved on : 06.09.2014
Date of Judgment : 12.09.2014
Final Order : Acquittal
JUDGMENT
1. The complainant company (to be referred as "company" hereinafter) i.e. BSES Yamuna Power Ltd has filed the present complaint case under section 135 r/w section 151 and u/s 154 (5) of the Electricity Act, 2003 (hereinafter referred to as "Act) against the accused praying that he be summoned, tried and punished as per law alongwith prayer to determine the civil liability of the accused as per provisions of Section 154 (5) of the Act,2003. The present case was filed by Sh. C.B.Sharma, Authorized Officer. Later Page 1 CC No: 771/08 BYPL Vs. Deepak on, Sh. Rajeev Ranjan, Sh. Mukesh Sharma and Sh.Jitender Shankar were substituted as authorized representative by order of this court.
2. Briefly as per complaint, on 08.09.2008 at 02.50p.m., as per direction of DGM Enforcement -I Sh.C.P.Singh an inspection was carried out by the officials of the company comprising of Sh. Jatan Singh (Sr.Manager), Sh.Veer Sen (Tr.Engg.), Manoj (lineman) and Chob Singh (Electrician) at the premises bearing no. BB-343, Bagrian Basti, Nabi Karim, Paharganj, Delhi. At the time of inspection, accused was found indulging in direct theft of electricity through illegal wire tapping the service line which was coming in the said premises. The entire connected commercial load was found as 4.717KW/NX/DX. No meter installed at site.
One piece of two core cable, 10 mm sqr, black, length of 4 meters was removed and seized as material evidence by Sh.Jatan Singh (Sr. Manager). The inspection reports were prepared at site. Necessary photographs and visual recording showing the irregularities were taken at site by member of raiding team. The accused was booked for the offence of direct theft of electricity.
3. Subsequently, theft assessment bill in the sum of Rs.1,77,548/- was raised against the accused. On the failure of the accused to deposit the same, present complaint was filed against him.
4. The accused was summoned U/s 135 of the Electricity Act 2003 by my ld. predecessor vide order dated 07.03.2009 after recording the pre-summoning evidence.
Notice u/s 251 Cr.PC for offence punishable u/s 135 and 151 of Electricity Act, 2003 was framed against the accused Deepak by my ld. predecessor vide order dated 09.11.2009 to which accused Page 2 CC No: 771/08 BYPL Vs. Deepak pleaded not guilty and claimed trial.
5. Complainant in support of its case examined two witnesses namely PW-1 Rajeev Ranjan (Authorized representative) and Sh.Jatan Singh (DGM) and Md.Nasim was examined by accused in his defence as DW-1.
PW-1 Sh. Rajeev Ranjan deposed that the present complaint Ex.CW-1/B was filed by Sh.C.B.Sharma. He was authorized vide letter of authority in his favour Ex. PW-1/A1 to act, appear and plead on behalf of the company in this case.
PW-2 Sh. Jatan Singh deposed that on 08.09.2008 he was posted as Senior Manager at BYPL. On that day, he received directions from DGM Enforcement-I Sh.C.P.Singh that at premises No.BB 343, Bagarian Basti Nabi Karim, Pahar Ganj, Delhi direct theft of electricity was going on and they were directed to conduct an inspection there. He along with Sh. Vir Sen (Trainee Engineer), Manoj and Sh. Chobh Singh (both Lineman) reached at the subject premises and conducted the inspection. During inspection, it was found no meter at site but there was a meter box in which illegal service cable was coming from LV Mains. The total connected load for commercial purpose was found as 4.717 KW.
They removed the illegal wire used for theft of electricity and prepared the inspection report Ex.CW2/A, load report Ex.CW2/B which bore his signature at point A. The illegal material i.e two core cable, one piece 10 mm square, colour black, length four meters was seized vide seizure memo Ex.CW-2/C which bore his signature at point A. They also captured the mode of theft as well as connected load in photography and videography Ex.CW-2/D (colly). The true Page 3 CC No: 771/08 BYPL Vs. Deepak copy of CD is Ex.CW-2/E. They had offered the accused to sign the documents but he refused and did not allow to paste the same. On the basis of the inspection report, a bill was prepared and the same is marked Ex.CW2/F. Witness correctly identified the case property as Ex.P1.
DW-1 Md.Nasim deposed that he knew Deepak from last 20 years and used to go to his house. On 08.09.2008 i.e the date of inspection, he was present at the house of accused and no raid was conducted in his street (mohalla).
6. In statement recorded u/s 313 Cr.PC, accused has denied the allegation and stated that he has been falsely implicated in the present case and no raid was conducted at his premises.
7. Ld. Counsel Ms.Khusboo Gupta, Adv. for the accused has argued that accused is falsely implicated in this case and there is no incriminating evidence against him. She submitted that no inspection was carried out at the subject premises.
During examination in chief PW-2 stated that accused refused to sign the reports and did not allow to paste the same however, in cross examination he stated that accused Deepak was not present at the time of inspection and the person present at site told him that accused Deepak was the owner of the property. The name of persons present at site were not disclosed.
No pubic persons were made as a witness at the time of inspection as well as at the time of seizing of material evidence. Counsel for the accused argued that entire case of the company was based on the hearsay evidence. It was requested that company had Page 4 CC No: 771/08 BYPL Vs. Deepak failed to prove its case on all counts so, accused was entitled to be acquitted in this case.
8. Per contra, counsel for company has argued that accused was indulging in direct theft of electricity supply through illegal wires tapping with illegal service line. Accused used the load to the tune of 4.717 KW for commercial purpose. Necessary photographs and visual recording of the connected load and mode of committing theft of electricity was taken by digital camera. 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.
9. I have gone through the documentary evidence adduced on record and arguments advanced at bar by counsel for both the parties.
The company failed to examine Sh. Veer Sen (Tr. Engg.), Manoj (lineman) and Chob Singh (Electrician), who were the member of the raiding team. No explanation has been assigned for the non examination of these witnesses.
No independent person was joined at the time of 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. Address of the premises was also not shown in the photographs. Identity proof of the person who was shown in the photographs was not established. 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.
Page 5 CC No: 771/08 BYPL Vs. Deepak The inspection report (Ex. CW 2/A) states in the column name of the user as Deepak ("as stated"), however the person who disclosed the name of accused was neither named nor examined. Site plan prepared by the member of the raiding team was required to be prove specifically however the same was not done. The company was under obligation to prove this site plan to specify the exact location of the inspected premises.
10. 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. The name of accused was stated to have been disclosed by the persons at the spot, but they were not examined. All the above noted facts were duly 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.
11. 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 Deepak 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 does 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.
12. As per judgment of Hon'ble High Court in Page 6 CC No: 771/08 BYPL Vs. Deepak 2012 (4) JCC 2713 titled as BSES Rajdhani Power Ltd. Vs. Sunheri & Ors., it is mandatory on the part of company to examine the videograher. In the present case it was not specified clearly as to which member of the raiding team captured photographs or recorded the videography.
The Compact disc (Ex. CW-2/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 that requisite certificate U/S 65 B is required to be produced in evidence in the court.
13. 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 24.11.2008 after 2½ 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 (Sahib Singh Vs. State of Haryana AIR 1997 SC 3247).
14. 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 Page 7 CC No: 771/08 BYPL Vs. Deepak 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.
15. 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.
16. 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 Page 8 CC No: 771/08 BYPL Vs. Deepak 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 examined in the court either, so the complaint Ex. CW 1/B remains unproved on record.
17. 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.
18. In the present case, company has not proved their 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.
19. In view of the foregoing reasons, company has failed to 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 Page 9 CC No: 771/08 BYPL Vs. Deepak court qua the theft bill raised by the company on the basis of inspection dated 08.09.2008 be released by the company after expiry of period of appeal. File be consigned to record room.
Dictated and announced
in open court (Arun Kumar Arya)
ASJ/Special Court (Elect.)
Tis Hazari/Delhi/12.09.2014
Page 10
CC No: 771/08
BYPL Vs. Deepak
12.09.2014
Present : Sh.Jitender Shankar, Authorized representative for the
complainant company.
Ms. Khushboo, Adv. for accused along with accused on bail.
Vide separate judgment announced today, accused is acquitted of the charges punishable U/S 135 & 151 of Electricity Act 2003. Bail bond of the accused is cancelled 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 08.09.2008 be released by the company after expiry of period of appeal.
However, in terms of Section-437 (A) Cr.P.C., accused is directed to furnish a bail bond for the amount of Rs. 40,000/- with one surety in the like amount, to appear before the appellate court, as and when such notice is issued in respect of any appeal, which may be filed against this judgment.
Necessary bail bond with surety, in compliance with the order, has been furnished by the accused along with latest passport size photographs and residential proof is accepted. File be consigned to record room.
(Arun Kumar Arya) ASJ/Special Court (Elect.) Announced in open court Tis Hazari/Delhi/12.09.2014 Page 11