Delhi District Court
Through : Sh. Jitender Shankar vs . on 22 January, 2015
IN THE COURT OF SHRI ARUN KUMAR ARYA,
ADDITIONAL SESSIONS JUDGE, SPECIAL COURT
(ELECTRICITY), TIS HAZARI COURT, DELHI
CC No. 27/08
Unique case ID No.02402R0847982008
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.
Mohd. Zameel
House No: 1907,
Mohalla Kabristan
Turkman Gate, Delhi ................ Accused
Through: Sh. S. D. Ansari, Adv. for accused
Date of Institution : 08.01.2008
Judgment reserved on : 12.01.2015
Date of Judgment : 22.01.2015
Final Order : Acquitted
CC No: 27/08
Police Station: Darya Ganj
BYPL Vs. Mohd. Zameel 1/15
JUDGMENT
1. As per complaint, on 06.08.2007 at 03:50 PM, as per directions of Manager - II, Enforcement - I, a team comprising of Sh. R. V. Singh (AM), Sh. Deepak Sharma (DET), Sh. Rajeev Sharma, Mohd. Shakkel and Sh. Satveer Sharma (all L/M) had conducted a raid at premises bearing house no. 1907, Mohalla Kabristan, Turkman Gate, Delhi. At the time of inspection, no electric meter was found installed at site and user was found indulging in direct theft of electricity by tapping the BSES LV mains connected to internal wiring. The photographs of IX (industrial purpose) load running in the basement took at site by joint inspecting team but due to highly resistance by the user photographs of the first floor were not taken.
The accused was illegally, unauthorizedly and dishonestly using the electricity for industrial and domestic purpose. The connected load of 2.487 KW was found for Industrial and 3.486 KW for domestic purpose and totaling to 6.333 KW / IX/ DX. Sh. S. K. Gajbhiye, Manager Enforcement was called at site and material i.e. PVC Al wire S/Core, 1, 8 mm Sq. 6 meter black colour was seized. The accused was booked for the offence of direct theft of electricity. Subsequently, theft assessment bill for sum of Rs. 1,16,064/ was CC No: 27/08 Police Station: Darya Ganj BYPL Vs. Mohd. Zameel 2/15 raised against the accused. On the failure of accused to deposit the same, present complaint was filed against 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 house no. 1907, Mohalla Kabristan, Turkman Gate, Delhi. (to be referred as "premises" hereinafter) 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 28.01.2008 after presummoning 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 24.04.2008 to which he pleaded not guilty and claimed trial.
4. Complainant in support of its case examined four witnesses i.e. PW1 Sh. C. B. Sharma (Authorized CC No: 27/08 Police Station: Darya Ganj BYPL Vs. Mohd. Zameel 3/15 Representative), PW2 Sh. Rajbeer Singh (Senior Manager), PW3 Sh. Deepak Kumar Sharma and PW4 Sh. S. K.Gabhiye (AVP, Central, Circle, Enforcement - I).
PW - 1 Sh. C. B. Sharma deposed that the present complaint Ex. PW1/B was filed by himself. He was authorized vide letter of authority in his favour Ex. PW1/A. PW - 2 deposed that on 06.08.2007, he along with Sh. Deepak Sharma (DET), Sh. Rajiv Sharma, Sh. Satbir and Mohd. Saqir conducted a raid at the premises bearing house no. 1907, Mohalla Kabristan, Turkman Gate, Delhi. At the time of inspection, there was no meter at site. The accused Mohd. Jameel was present at site (identified by the witness) had committing theft of electricity by tapping the BSES LV mains. The accused was running his business at basement for book binding work. Photographs (Ex. CW 2/D) were taken by team for the basement with the help of digital camera, but accused did not allow the team to took the photographs of the ground as well as first floor due to the privacy. The photographs were loaded in the CD later on and CD (Ex. CW 2/E). They prepared inspection report (Ex. CW 2/A), meter details report (Ex. PW 2/A1) and load report Ex.CW2/B which bore his signature at point 'A'. The assessment bill is Ex. CW 2/F. CC No: 27/08 Police Station: Darya Ganj BYPL Vs. Mohd. Zameel 4/15 The team called Sh. S. K. Gajbhiye (DGM) for seizing the material. He seized the case property from the site, sealed in gunny bag with the seal of Sh. S. K. Gajbhiye and thereafter seized it vide seizure memo Ex.CW2/C. After inspection, they offered entire inspection report to the accused present at site but he refused to sign the same and did not allow to paste the same on the wall of the premises. He identified the case property i.e aluminum wire measuring about 6 meters in length of black colour with a PVC coating Ex. P1.
PW - 3 Sh. Deepak Kumar Sharma deposed that on 06.08.2007, he accompanied the raiding team for inspection at premises with raiding team consisted of him, Sh. Rajbeer Singh, Sh. Rajiv Sharma, Mohd. Shakeel and Sh. Satbir Sharma. At the time of inspection accused was found indulging in direct theft of electricity from the BSES LV mains with the help of PVC aluminum black colour wire of 8 mm Sq. measuring 6 meters. No meter was found installed at site. The consumer was using the electricity spply at the basement for industrial purpose and on the first floor for domestic purpose. The connected load was 2.487 KW was found for industrial purpose and 3.84 KW was found for domestic purpose. He further made the similar allegations against the accused.
CC No: 27/08 Police Station: Darya Ganj BYPL Vs. Mohd. Zameel 5/15 PW - 4 Sh. S. K. Gajbhiye, deposed that on 06.08.2007, he was posted at Gandhi Market Enforcement Office as Manager Enforcement. He received a call from Assessing Officer Sh. R. V. Singh at for seizing the material. On his instructions, line man removed the illegal wires from the site and seized in a gunny bag with the seal of Manager Enforcement vide seizure memo (Ex. CW 2/C). He identified the case property i.e PVC aluminum wire measuring about 6 meters in length of black colour Ex. P1 and carbon copy Ex. P2.
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 premises.
6. Sh. S. D. Ansari, Adv. for the accused had argued that accused is falsely implicated in this case and company failed to bring any incriminating material against him.
During cross examination, PW - 2 Sh. Rajbeer Singh admitted that Sh. S. K. Gajbhiye had directed them to inspect the site. Team members had not gone to police station. One or two persons were present at the time of inspection. He admitted that premises CC No: 27/08 Police Station: Darya Ganj BYPL Vs. Mohd. Zameel 6/15 were situated in a congested area. On a particular question, he admitted that he did not know as to how many families were residing at the premises. He did not know which part of the property was occupied by whom other than accused. He did not collect any documentary proof of the point A, B and C in Ex. CW 2/A. During cross examination PW - 4 Sh. S. K. Gajbhiye admitted that the premises was situated in a congested area. He did not know in respect to the families occupying the premises. He did not inquire in which portion the alleged wire was connected and who was residing in the property. The line man removed the wire.
No public person was made as a witness. No complaint was made to the police for initiating legal proceedings against the accused when he refused to sign the reports and did not allow the team to take the photographs of the basement. The documents of ownership / occupancy relating to inspected premises 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 with the accused. The company failed to prove the business of book binding of accused in the premise. It was contended that company had failed to prove its case so, accused is entitled to be acquitted in this case. CC No: 27/08 Police Station: Darya Ganj BYPL Vs. Mohd. Zameel 7/15
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 by tapping the BSES LV mains. The total connected load 2.487KW used for industrial purpose and 3.84 KW for domestic purpose was assessed by the inspection team illegally used by the accused. The above said illegal material i.e PVC aluminum wire measuring 6meters in length and 8mm Sq in size was seized vide seizure memo Ex. CW2/C. Necessary visual recording and photographs showing the irregularities was taken by joint team. The accused was booked for offence of direct theft of electricity. As per deposition company witnesses 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 failed to examine Sh. Shakeel, Sh. Rajeev Sharma and Sh. Satbir Sharma who were members of raiding team in the court. No explanation has been assigned for non examination of these witnesses. No independent person was joined at the time of inspection or seizure of the case property. It is not mentioned in the inspection report whether accused was occupying the premises in the CC No: 27/08 Police Station: Darya Ganj BYPL Vs. Mohd. Zameel 8/15 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 name of the user is Mohd. Zameel (as stated"), however, it was not specified as to who disclosed the name of accused.
Counsel for the company argued that accused was present at the time of inspection, however, same was not proved by member of the raiding team as they have not collected any documents i.e. election card / ration card which shows that accused was the actual user or he was present at the time of inspection.
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. So, the assertion of the CC No: 27/08 Police Station: Darya Ganj BYPL Vs. Mohd. Zameel 9/15 witness that accused had herself told that he was the owner of the inspected premises is of no help to the company.
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 ''Bhateri'' 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.
11. Photographs were taken by team members 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 CC No: 27/08 Police Station: Darya Ganj BYPL Vs. Mohd. Zameel 10/15 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 65B 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 Court of Delhi).
12. 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 5 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).
13. There is nothing on record to show as to who was the Authorized Officer competent to make this inspection. As per CC No: 27/08 Police Station: Darya Ganj BYPL Vs. Mohd. Zameel 11/15 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 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, though, CISF and local police accompanied the team during inspection, 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) CC No: 27/08 Police Station: Darya Ganj BYPL Vs. Mohd. Zameel 12/15 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 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.
PW - 2 Sh. Rajbeer Singh in his examination - in - chief deposed the name of one Mohd. Saqir, however, name of this person was neither mentioned in the complaint, or not in the list of witness or nor in the examination - in - chief of PW - 3 Sh. Deepak Kumar Sharma.
PW - 4 Sh. S. K. Gajbhiye deposed that line man removed the illegal wires from the site, however, that lineman was not examined by the company in the court. PW - 4 has no knowledge as to who was residing at premises and also he did not know in which portion the alleged wire was connected.
CC No: 27/08 Police Station: Darya Ganj BYPL Vs. Mohd. Zameel 13/15
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, company has failed to prove its case against the accused beyond reasonable doubt, he is accordingly acquitted. Bail bond of the accused stands canceled and surety discharged. Amount, if any, deposited by the CC No: 27/08 Police Station: Darya Ganj BYPL Vs. Mohd. Zameel 14/15 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 06.08.2007 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/22.01.2015
CC No: 27/08
Police Station: Darya Ganj
BYPL Vs. Mohd. Zameel 15/15