Delhi District Court
Bypl vs . Jaswant Kumar on 10 April, 2015
CC No.329/08
BYPL Vs. Jaswant Kumar
IN THE COURT OF SHRI ARUN KUMAR ARYA,
ADDITIONAL SESSIONS JUDGE, SPECIAL COURT
(ELECTRICITY), TIS HAZARI COURT, DELHI
CC No. 329/08
Unique case ID No.02402R0852492008
BSES Yamuna Power Ltd.
Having its Registered office at
Shakti Kiran Building,
Karkardooma, Delhi-110032
(Through its authorized representative
Sh.C.B.Sharma) ............ Complainant
Through : Sh. Jitender Shankar, AR with Sh. Nilesh
Kumar, Ld.Counsel for the company.
Vs.
Jawant Kumar
A-705, G/F., Prem Nagar, Amar Puri,
Nabi Karim, New Delhi ................ Accused
Through: Sh.S.B.Singh, Adv. for accused
Date of Institution : 23.05.2008
Judgment reserved on : 01.04.2015
Date of Judgment : 10.04.2015
Final Order : Acquittal
JUDGMENT
1. The present complaint was filed by Sh.C.B. Sharma, Authorized Officer of company. Complaint u/sec.151 of the Electricity Act, 2003 (hereinafter called as 'the Act') has been filed by the complainant company (hereinafter called as 'company') against accused for offences punishable U/s 135 of the Act and also for determining the civil liability.
2. Briefly, on 17.01.2008 a team comprising of Sh.J.B.Singh (AM), Sh.Vineet Kumar (DET), Sh.Raj Karan (lineman) Page 1 CC No.329/08 BYPL Vs. Jaswant Kumar and Dinesh Kumar (Electrician) had conducted a raid at premises no. A-705, G/F., Prem Nagar, Amar Puri, Nabi Karim, Delhi. During inspection, accused was found indulging in direct theft of electricity through illegal copper wires i.e. 2 number of 3/22 SWG of 5 mtr length white colour from the cut of neighbour's service line. The supply was being used for repairing machine i.e for commercial purpose. All connected load of the premises was running directly with BSES system. The videography was conducted by member of raiding team.
The videogarphy of inspection was captured by Rajender from M/s. Arora Photo Studio. The total connected load of 2.688 KW/NX/DT assessed by the inspection team. The illegal material i.e one 2 core black colour, 10 mm sqr., aluminum wire was seized vide seizure memo Ex.CW-2/E prepared at site. The accused was booked for the offence of direct theft of electricity. Subsequently, theft assessment bill for sum of Rs.1,00,860/- was raised against the accused. On the failure of accused to deposit the same, present complaint was filed against him.
3. The accused was summoned U/s 135 of the Electricity Act 2003 by my ld. predecessor vide order dated 10.07.2008 after pre-summoning evidence. 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 vide order dated 14.07.2009 to which he pleaded not guilty and claimed trial.
4. Complainant in support of its case examined two witnesses i.e. PW-1 Sh. Rajeev Ranjan (Authorized Representative) and PW-2 Sh.J.B.Singh (Sr. Manager).
PW-1 Sh.Rajeev Ranjan deposed that the present Page 2 CC No.329/08 BYPL Vs. Jaswant Kumar complaint Ex.CW-1/B was filed by Sh.C.B.Sharma. He was authorized vide letter of authority in his favour Ex.CW-1/A1.
PW-2 Sh.J.B.Singh deposed that on 17.01.2008, he along with other team members namely Dinesh Singh (Electrician), Raj Karan (Lineman), Vineet Kumar (DET) and photographer Rajender had gone to the premises bearing No.A-705, Ground Floor, Prem Nagar, Amar Puri, Nabi Karim, Delhi. As per direction of Sh.S.K. Gajbhiye-Business Manager, they reached the site. During inspection, accused Jaswant Kumar was found indulging in direct theft of electricity through illegal wires from the cut of neighbor's service line. The consumer used the supply for repairing of machines. The Inspection Report Ex.CW-2/B, Load Report Ex.CW-2/C and Meter details report Ex.CW-2/D (already exhibited) were prepared at site and bore his signatures at point A. The total connected load of 2.688 KW/NX was found. The user was using the electricity for commercial purpose. No meter was found at the site. Sh. Rajender took the videography of the load and theft of electricity. The CD Ex.CW-2/G (already exhibited) was made. He seized the illegal material i.e (2 nos.) copper wire of 3/22 swg measuring 6 mtr length of white colour vide seizure memo Ex. CW2/E (already exhibited) and sealed the same in gunny bag sealed with the seal of JB Singh, Enforcement. He correctly identified the copper wire as Ex. P1 (colly).
5. In statement recorded u/s 313 Cr.PC, accused had denied the allegations and stated that he has been falsely implicated in the present case. He stated that videography does not belong to his premises.
6. Sh. S.B.Singh, Adv. for the accused had Page 3 CC No.329/08 BYPL Vs. Jaswant Kumar argued that accused was falsely implicated in this case and company failed to bring any incriminating evidence against him. No list showing the Authorized officer has been placed on record. They had received the complaint of theft of electricity against the said premises from Sh.S.K.Gajbhiye, Business Manager. There was no meter at site at the time of inspection. Other public persons as well as workers on the premises at the time of inspection were present, however, no statement of workers or other public persons who were present at site was recorded. No persons from public signed the seizure memo. The accused was found tapping through 2 pieces of wire of length of 3 mtr. each. The wire was removed by lineman Dinesh Singh.
He did not know whether the accused has filed any application for commercial meter or that said application was pending in their office. They assessed the load with the help of clip-on-meter however he could not tell whether the said clip on meter was itself checked before the inspection. It was contended that company had failed to 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 indulging in direct theft of electricity through illegal wires from cut of neighbours service line. The consumer used the supply of electricity for repairing of machines i.e for commercial purpose. The illegal material i.e (2 nos.) copper wire of 3/22 SWG measuring 6 mtr length of white colour was seized vide seizure memo Ex.CW-2/E prepared at site. The total connected load of 2.688 KW/NX was found installed. Sh. Rajender took the videography of the load and theft of electricity. The Inspection Report Ex.CW-2/B, Load Report Ex.CW-2/C and Meter details report Ex.CW-2/D were Page 4 CC No.329/08 BYPL Vs. Jaswant Kumar prepared at site. The accused was booked for offence of direct theft of electricity. As per deposition of PW-2 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.
The company did not inquire as to the ownership of the premises from the neighbours or accused either at the time of inspection of the premises or before filing of present complaint. The neighbor from whose service line the theft was going on was not examined as a witness. The lineman Dinesh Singh who removed the wire was neither examined nor signed any of the inspection reports except seizure memo.
The signatures of Raj Kumar (lineman) and Dinesh Singh (Electrician) were not taken on inspection reports except seizure memo. No public person was made as a witness. No complaint was made to the police for initiating legal proceedings against the accused and for proper investigation in the case. The documents of ownership/ occupancy were not procured by the team. 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 of electricity with the accused. The company failed to prove the occupation of accused in the inspected premise.
The company failed to examine Sh.Vineet Kumar (DET), Raj Karan (lineman) and Dinesh Singh (Electrician). 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 Page 5 CC No.329/08 BYPL Vs. Jaswant Kumar whether accused is occupying the premises in the capacity of owner or tenant. The 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 occupancy of accused is to be proved by positive evidence.
In the inspection report (Ex.CW-2/B) in column no.2.2 name of the user is Jaswant Kumar ("as stated"), however, the person who were present at spot and disclosed the name of accused was not named or examined in the court. As per complaint, the accused refused to sign the inspection reports, however, the said fact was not reported to the local police.
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 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 '' Jaswant Kumar'' 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 Page 6 CC No.329/08 BYPL Vs. Jaswant Kumar aforesaid count.
11. As per judgment of Hon'ble High Court in 2012 (4) JCC 2713 titled as BSES Rajdhani Power Ltd. Vs. Sunheri & Ors. the company was under obligation to examine the Rajender from M/s. Arora Photo Studio who conducted videography.
The Compact disc (Ex.CW-2/G) 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 sub-clause ''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 Court of Delhi).
12. As per Regulation 52 (Vii) 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 23.05.2008 after about 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 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).
Page 7 CC No.329/08 BYPL Vs. Jaswant Kumar
13. 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 Standard Regulations 2007, the licensee shall publish the list of the 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.
14. 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.
15. 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. 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 Page 8 CC No.329/08 BYPL Vs. Jaswant Kumar 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.CW-1/B remains unproved on record.
16. 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.
17. In the present case, company has not proved the case by positive evidence as the testimony of witnesses 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.
18. In view of the foregoing reasons, as the company has failed to prove the theft of electricity against the accused beyond reasonable doubt in the present case. The accused is accordingly acquitted. Bail bond of the accused stands canceled Page 9 CC No.329/08 BYPL Vs. Jaswant Kumar 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 17.01.2008 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/10.04.2015
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CC No.329/08
BYPL Vs. Jaswant Kumar
10.04.2015
Present: Sh. Jitender Shankar, Authorized Representative for the
complainant company.
Sh.S.B.Singh, Adv. for accused alongwith accused 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 canceled and surety 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.
However, in terms of Section 437 (A) Cr.PC., accused are 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 photograph and residential proof is accepted. File be consigned to record room.
Announced in open court (Arun Kumar Arya)
ASJ/Special Court (Elect.)
Tis Hazari/Delhi/10.04.2015
Page 11