Delhi District Court
Through : Sh. Jitender Shankar vs . on 31 March, 2015
IN THE COURT OF SHRI ARUN KUMAR ARYA,
ADDITIONAL SESSIONS JUDGE, SPECIAL COURT
(ELECTRICITY), TIS HAZARI COURT, DELHI
CC No. 48/08
Unique case ID No: 02402R00508852009
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 Sh. P. K. Rai,
Legal Retainer and Ld. Counsel for the company.
Vs.
Subhash
2699, First Floor
Gali Dakatan Wali
Sita Ram Bazar, Delhi ................ Accused
Through: Sh. Manoj Kumar, Ld. counsel for the accused.
Date of Institution : 08.01.2008
Judgment reserved on : 27.03.2015
Date of Judgment : 31.03.2015
Final Order : Acquitted
CC No: 48/08
Police Station: Darya Ganj
BYPL Vs. Subhash 1
JUDGMENT
1. Briefly, on 30.08.2007 at 01:05 PM, a mass raid was conducted along by Manager II (Enf. I), Sh. R. V. Singh (AM), Sh. Satish Kumar (DET), Mohd. Shakeel and Sh. Satveer Sharma (both lineman) along with CISF, Local Police from Police Station Hauz Kazi Staff conducted a raid at the premises bearing house no. 2699, First floor, Gali Daktan Wali, Sita Ram Bazar, Delhi (to be referred as "Premises" hereinafter). At the time of inspection, accused was found to be user of the electricity supplied at the premises. No meter was found at site and accused was found using the electricity by tapping the BSES Yamuna Power Ltd mains through illegal wiring and connected to house wiring. The accused was illegally, unauthorizedly and dishonestly using the electricity for the domestic purpose to the tune of 5.203 KW.
Sh. S. K. Gajbhiye, Manager - II Enforcement - I removed the illegal wire i.e. PVC copper wire, 4, off size / 10 mt. blue, red and white colour from the site. Videography was conducted by Sh. Sunil from M/S Arora Photo Agency. Inspection reports were prepared at site but the user refused to sign the same. The accused was booked for the offence of direct theft of electricity. Subsequently, theft assessment bill for sum of Rs. 1,17,395/ was CC No: 48/08 Police Station: Darya Ganj BYPL Vs. Subhash 2 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 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.P.C of offence punishable U/S 135 and 151 of Electricity Act, 2003 was framed against the accused by my ld. predecessor vide order dated 24.11.2008 to which he pleaded not guilty and claimed trial.
4. Complainant in support of its case examined 4 witnesses i.e PW - 1 Sh. Rajeev Ranjan, PW - 2 Sh. Rajbeer Singh, PW - 3 Sh. S. K. Gajbhiye and PW - 4 Sh. Satish Kumar. CC No: 48/08 Police Station: Darya Ganj BYPL Vs. Subhash 3 PW - 1 Sh. Rajeev Ranjan deposed that the present complaint Ex. CW1/B was filed by Sh. C. B. Sharma. He was authorized vide letter of authority in his favour Ex. CW1/A. His statement cannot be relied upon as he never turned up for cross examination.
PW - 2 Sh. Rajbeer Singh, deposed that on 30.08.2007, an inspection was carried out by the members of the raiding team comprising of Sh. Satish Kumar, Mohd. Shakeel and Sh. Satbir Sharma along with local police and CISF at the premises bearing no. 2699, First floor, Gali Dakatan Wali, Bazar Sita Ram. The accused was found indulging in direct theft of electricity. No meter was found at site and accused was tapping the electricity from BSES Yamuna Power Ltd LV mains with the illegal wires and fed the electricity to the first and second floor of the premises. Accused was using the electricity for domestic purpose to the tune of 5.203 KW.
At the time of inspection, he called Sh. S. K. Gajbhiye at site for seizing the material. Entire reports. i.e. inspection report along with meter details (Ex. CW 2/A) bore his signature at point A, load report (Ex. CW 2/B) and seizure memo (Ex. CW 2/C) were prepared at site. All the reports were offered to the accused for signature but he refused to sign and also did not allow the team to paste the same CC No: 48/08 Police Station: Darya Ganj BYPL Vs. Subhash 4 at the premises. The witness identified the case property as Ex. P1.
PW - 3 Sh. S. K. Gajbhiye deposed that on 30.08.2007 he was the suprvisor of the three teams as mass raid was conducted on that day. Team leader Sh. R.V. Singh detected the electricity theft at the premises bearing 2699, first floor, gali Dakkan Wali, Bazar Sita Ram, he informed him the electricity theft. He reached at the premises and on his directions team members removed the illegal wire. Illegal wire was seized at the site, vide seizure memo (Ex. CW 2/C) which bore his signature at point C. This witness identified the case property in the court.
PW - 4 Sh. Satish Kumar deposed on the similar lines as PW - 2 Sh. Rajbeer Singh against the accused.
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. Manoj Kumar, Adv. for the accused had argued that accused was falsely implicated in this case and company failed to bring any incriminating material against him. CC No: 48/08 Police Station: Darya Ganj BYPL Vs. Subhash 5 No public person was made as a witness. The documents of ownership / occupancy were not procured by the team. No inquiry on the aspect of occupancy of the premises was made. 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.
PW - 2 Sh. Rajbeer Singh, admitted that one lady was present along with accused, but he did not know about the whereabouts of the lady. They inspected the first floor but not the other floors as same were locked. Inspected area was a crowded area. 5 - 6 persons were collected at the spot. Public persons were not made as witnesses. The team did not inquire from the neighbours or from the other persons as to who used the electricity at the premises. He admitted that illegal wire was coming from second floor to first floor from the outer side of the wall. He did not remember who occupied the second floor. No case was booked against the occupier at second floor. He admitted that in the site plan property number as well as name of the user was not mentioned. There was no proof to show that the illegal wire is coming from second floor to first floor. He further admitted that no photographs were taken at the spot. One CC No: 48/08 Police Station: Darya Ganj BYPL Vs. Subhash 6 lady and accused met at the site. He did not inquire the name of the lady. He also did not remember the name of the videographer.
PW - 3 Sh. S. K. Gajbhiye admitted that he has no personal knowledge of the complete inspection. He did not remember the name member of the raiding who prepared the seizure memo. Public persons were gathered at the spot at the time of inspection as well as at the time of preparation of the seizure memo.
PW - 4 Sh. Satish Kumar admitted that he did not remember whether the accused was present at site or not. Team / department had not checked the ownership / tenancy documents before or after the raid. Team has not procured any documents regarding the ownership of the premises. Public persons were not made as a witness.
Company did not examine Mohd. Shakeel, Sh. Satveer Sharma and Sh. Sunil in the court. Police personnel with the team were also not examined. 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 at site and accused using CC No: 48/08 Police Station: Darya Ganj BYPL Vs. Subhash 7 the electricity by tapping the BSES mains through illegal tapping wiring and connected to house wiring and using supply for connected load. Accused used the electricity for domestic purpose to the tune of 5.203 KW. Illegal wire which was used for direct theft was seized on the instruction of Sh. S. K. Gajbhiye at site. Necessary videography was captured by Sh. Sunil from M/S Arora Photo Agency at site. The accused was booked for offence of direct theft of electricity.
8. I have gone through the evidence adduced on record and considered the arguments of counsel for both parties.
As per complaint and pre - summoning evidence theft was going at the first floor whereas PW - 2 Sh. Rajbeer Singh and PW - 4 Sh. Satish Kumar deposed in their examination - in - chief that theft of electricity was fed to the first and second floor. PW - 2 and PW - 4 stated in their examination - in - chief that Sh. S. K. Gajbhiye was called at site by PW - 2, but this fact was not mentioned in the complaint. PW - 2 never deposed that Sh. Sunil (videographer) captured the videography, however, PW - 4 and in the complaint, it is clearly mentioned that videography was taken by Sh. Sunil.
PW - 2 deposed in his cross examination that accused CC No: 48/08 Police Station: Darya Ganj BYPL Vs. Subhash 8 was present at site but he did not allow the team to took his photograph, it was very surprising when inspection was carried out without any hindrance then as to how the person present at site could create hindrance for capturing his photographs. He also deposed that illegal wire was coming from second floor to first floor from the outer side of the wall, however, he could not tell as to who was residing at the second floor and did not make him as an accused in this case.
PW - 2 deposed in his cross examination that accused was present at the time of inspection, whereas PW - 4 who was also the member of the raiding team stated in his cross examination that he did not remember whether the accused was present at time of inspection. PW - 2 admitted in his cross examination that no videography was done inside the house. He deposed that premises was situated at a crowded area and at the time of inspection some persons were gathered at that time, but public persons were not cited as witnesses in this case.
In the site plan, it is clearly shown that theft was going on the second floor and not at the first floor, name of the user was not also mentioned. The company was under obligation to prove this site plan which they failed to do so.
CC No: 48/08 Police Station: Darya Ganj BYPL Vs. Subhash 9 Sh. Sunil from M/S Arora Photo Studio who is the videographer at the time of inspection not examined in the court 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 videographer 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.
The company failed to examine Mohd. Shakeel, Sh. Satbir Sharma and Sh. Sunil who were members of raiding team. No explanation has been assigned for non examination of these witnesses. No independent person was joined at the time of CC No: 48/08 Police Station: Darya Ganj BYPL Vs. Subhash 10 inspection and 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. 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.2.2 name of the user is Subhash ("as stated"), however, it was not specified as to who disclosed the name of accused. The lady who was allegedly present at spot not examined in the court by the company to prove their case against the accused.
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 CC No: 48/08 Police Station: Darya Ganj BYPL Vs. Subhash 11 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 or the some other person 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.
PW - 2 Sh. Rajbeer Singh deposed that accused was present at site but he created hindrance while his video was being captured. It was also deposed by PW - 2 that accused along with one lady was present at site. The Hon'ble Delhi High Court in Crl. M.C. 2296/2008 titled as BRPL & Ors. Vs. Ishwar Chand & Anr. dated 10.02.2009 has issued certain guidelines to the electricity companies to videograph the sign boards of the name plates as well as the accuracy of inspected address with nearby landmark. It was also directed to videograph the person who met with the raiding team at site. An office order bearing no. BSES/RPL/HOD/001 dated CC No: 48/08 Police Station: Darya Ganj BYPL Vs. Subhash 12 30.08.2008 already exists in this respect. Company has failed to prove adhere to abovesaid guidelines.
11. 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 inspection was conducted on 30.08.2007, however, company has filed the complaint in the court on 08.01.2008 which is after 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).
The reports prepared at site were only signed by two members i.e. Satish Kumar and Sh. Rajvir Singh, however, team also consisted of Mohd. Shakeel, Sh. Satbir Sharma and Sh. Sunil along with CISF and police officials from the Police Station Hauz Qazi, who never signed on the reports. The accused refused to receive or paste the reports at site how a person refused to receive / paste the same at the premises in the presence of police. As per Regulation 52 (ix) CC No: 48/08 Police Station: Darya Ganj BYPL Vs. Subhash 13 of Delhi Electricity Supply Code and Performance Standards Regulations 2007, as per this regulation reports must be signed by each member of the raiding team and also in case of refusal of the reports, by the consumer or his /her representative to either accept or give a receipt, copy of inspection report must be pasted a conspicuous place in / outside the premises.
12. 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 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.
13. 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 CC No: 48/08 Police Station: Darya Ganj BYPL Vs. Subhash 14 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.
14. 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.
15. A special Act created always have special measures to avoid its misuse by the investigating agencies, so CC No: 48/08 Police Station: Darya Ganj BYPL Vs. Subhash 15 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.
16. In the present case, company has not proved the case by positive evidence as the testimony of PW2 and PW - 4 have material contradictions which are already observed in the foregoing paras. Moreover, 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.
17. In view of the foregoing reasons, company has failed to prove its case against the accused beyond reasonable doubt, she is accordingly acquitted. Bail bond of the accused stands canceled 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 CC No: 48/08 Police Station: Darya Ganj BYPL Vs. Subhash 16 inspection dated 30.08.2007 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/31.03.2015
CC No: 48/08
Police Station: Darya Ganj
BYPL Vs. Subhash 17