Delhi District Court
Bypl vs . Dilip Kumar on 17 September, 2014
CC No: 573/08
BYPL Vs. Dilip Kumar
IN THE COURT OF SHRI ARUN KUMAR ARYA,
ADDITIONAL SESSIONS JUDGE, SPECIAL COURT
(ELECTRICITY), TIS HAZARI COURT, DELHI
CC No. 573/08
Unique case ID No.02402R0058702009
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.
Dilip Kumar
Shop No. 1241, FF, Kacha Bagh,
Chandni Chowk, Delhi-6 .............. Accused
Date of Institution : 25.08.2008
Judgment reserved on : 08.09.2014
Date of Judgment : 17.09.2014
Final Order : Acquittal
JUDGMENT
1. In brief as per complaint, on 28.05.2008 at 11.50a.m., an inspection was carried out by the officials of the company comprising of Sh. Jitender Kumar (Asstt. Manager), Sh.Suresh Chand (DET), Bharat Bhushan, Vipin Joshi (both lineman) at the premises bearing Shop no. 1241/FF, Kacha Bagh, Chandni Chowk, Delhi-6. At the time of inspection, accused was found indulging in direct theft of electricity through illegal tapping from other Page 1 CC No: 573/08 BYPL Vs. Dilip Kumar user's service line. The entire connected commercial load was found as 5.545 KW/NX/DT. No meter found at site.
Two 2 PVC copper wire 3x20 mm sqr., of length 2 mtr white colour was removed and seized as material evidence by Sh.Jitender Kumar (Asstt. 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.
2. Subsequently, theft assessment bill in the sum of Rs.1,19,011/- was raised against the accused. On the failure of the accused to deposit the same, present complaint was filed against him.
3. The present complaint was filed by Sh.C.B. Sharma, Authorized Officer of the company. Later on, Sh. Rajeev Ranjan, Sh. Mukesh Sharma and Sh.Jitender Shankar were substituted as authorized representative by order of this court. 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.
4. The accused was summoned U/s 135 of the Electricity Act 2003 by my ld. predecessor vide order dated 18.09.2008 after recording the pre-summoning evidence.
Page 2 CC No: 573/08 BYPL Vs. Dilip Kumar Notice u/s 251 Cr.PC for offence punishable u/s 135 and 151 of Electricity Act, 2003 was framed against the accused Dilip Kumar by my ld. predecessor vide order dated 05.05.2009 to which he pleaded not guilty and claimed trial.
5. Company in support of its case examined two witnesses namely PW-1 Rajeev Ranjan (Authorized representative) and Sh.Jitender Kumar (Sr. Manager) and accused examined himself as DW-1 in his defence.
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. CW-1/A to act, appear and plead on behalf of the company in this case.
PW-2 Sh. Jitender Kumar deposed that on 28.05.2008 he alongwith Suresh Chand (DET), Bharat Bhushan and Vipin Chand Joshi (both lineman) had conducted an inspection at premises bearing shop No. 1241, FF, Kacha Bagh, Chandni Chowk, Delhi. During inspection there was no meter at site and the user was illegally using the electricity by directly tapping from other user service line. The said premises and stolen energy was being used by accused for commercial purpose. The total connected load was found as 5.545 KW. They had 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 PVC white colour copper wire of length 2 m, size 3x20 mm sqr. was seized vide seizure memo Ex.CW-2/C which bore his signature at point A. Lineman Vipin Joshi captured photographs Ex.CW-2/D. The CD Page 3 CC No: 573/08 BYPL Vs. Dilip Kumar containing said photographs is Ex.CW-2/E. They had offered the accused to sign the documents but he refused and also 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 Dilip Kumar deposed that he was running the business at the shop bearing no. 1241, FF, Kacha Bagh, Chandni Chowk, Delhi-110006. Electricity meter was installed at his shop in the name of his mother Smt. Kaushlaya Devi and had filed copy of electricity bills Ex.DW-1/A (collectively). No raid was conducted at his shop and the photographs placed on record has no concern with his shop.
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. He was using the electricity through meter which was installed at his premises in the name of his mother Smt.Kaushalya Devi.
7. 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 subject premises.
PW-2 did not tell the name of the other user as well meter number through which service cable was used by the accused for theft. No inquiry was made by them from the so called other user, Page 4 CC No: 573/08 BYPL Vs. Dilip Kumar whose service cable was used for direct theft. No public witness was joined during inspection. The documents were not pasted at the site due to hindrance created by the accused as well as the persons present at site, however they did not reported the said fact to police. The name of persons present at site were also not disclosed.
No pubic persons were made as a witness at the time of inspection and seizure 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 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 through illegal tapping from other user's service line. There was no meter at site and the accused used the load to the tune of 5.545 KW for commercial purpose. Necessary photographs and visual recording showing irregularities were taken by the member of raiding team. 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 evidence adduced on record and heard arguments of counsel for both parties.
The company failed to examine Sh. Suresh Chand (DET), Bharat Bhushan and Vipin Ch.Joshi ( both lineman) who were the member of the raiding team. No explanation has been assigned for the non examination of these witnesses.
Page 5 CC No: 573/08 BYPL Vs. Dilip Kumar No independent person was joined at the time of inspection and seizure of the case property, though 2-3 persons were present at site. It is not mentioned in the inspection report whether accused was occupying the premises in the 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, the accused was held to be rightly acquitted by the trial court.
The inspection report (Ex. CW 2/A) states in the column name of the user as Dilip Kumar ("as stated"), however it was not specified as to who disclosed the name of accused. The name of other use from whose service line the direct theft was being committed was not disclosed. It was important for the company to to examine him in the court to prove their case.
As per inspection report there was no meter at site, however, as per DW-1 and the documents placed on report a meter was found installed in the name of Smt. Kaushalya Devi in the inspected premises. This kind of ambiguity creates doubt on the inspection report itself.
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. 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 Page 6 CC No: 573/08 BYPL Vs. Dilip Kumar 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 Dilip 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 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 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 Sh.Vipin Joshi (lineman) member of the raiding team who 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 Page 7 CC No: 573/08 BYPL Vs. Dilip Kumar 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 25.08.2008 after 3 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 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.
Page 8 CC No: 573/08 BYPL Vs. Dilip Kumar 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 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 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.
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.
Page 9 CC No: 573/08 BYPL Vs. Dilip Kumar
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 court qua the theft bill raised by the company on the basis of inspection dated 28.05.2008 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/17.09.2014
Page 10
CC No: 573/08
BYPL Vs. Dilip Kumar
17.09.2014
Present : Sh.Jitender Shankar, Authorized representative for the
complainant company.
Sh.Parveen Yadav, 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 28.05.2008 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/17.09.2014 Page 11