Delhi District Court
Bypl vs . Naresh Kumar on 18 December, 2014
CC No.57/09
BYPL Vs. Naresh Kumar
IN THE COURT OF SHRI ARUN KUMAR ARYA,
ADDITIONAL SESSIONS JUDGE, SPECIAL COURT
(ELECTRICITY), TIS HAZARI COURT, DELHI
CC No. 57/09
Unique case ID No.02402R0080442009
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
Ld.Counsel for the company.
Vs.
Sh.Naresh Kumar
R/o. H.No. 1290, FF,
Ganj Mir Khan,
Rakab Ganj, New Delhi ................ Accused
Through: Sh.Parveen Yadav, Adv. for accused
Date of Institution : 29.01.2009
Judgment reserved on : 03.12.2014
Date of Judgment : 18.12.2014
Final Order : Acquittal
JUDGMENT
1. As per complaint, on 01.11.2008 a team comprising of Sh.Raj Singh (Sr. Manager), Sh. Suresh Chand (DET), Sh. Krishan Lal and Sh. Nagender Pal (both lineman) had conducted a raid at premises no.1290, F/F, Ganj Mir Khan, Rakab Ganj, New Delhi. At the time of inspection, no meter was found installed at site and accused was found indulging in direct theft of electricity by Page 1 CC No.57/09 BYPL Vs. Naresh Kumar illegally tapping from BSES pole. The visual recording showing the irregularities was conducted by member of raiding team. The total connected load of 8.258 KW/DT (i.e 7.603 KW/DX + 0.655 KW/NX) was assessed by the inspection team illegally used by the accused for domestic and commercial purpose. The illegal material i.e two number of 7/22 SWG, PVC copper wire of blue colour of 3 mtr was seized vide seizure memo Ex.CW-2/3 prepared at site.
The accused was booked for the offence of direct theft of electricity. Subsequently, theft assessment bill for sum of Rs. 1,40,765/- was 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, Delhi-110032 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 bearing no. 1290, F/F, Ganj Mir Khan, Rakab Ganj, New Delhi (to be referred as "premises in question" 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 16.03.2009 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 17.03.2010 to which he pleaded not guilty and claimed trial.
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4. Complainant in support of its case examined three witnesses i.e PW-1 Sh. Rajeev Ranjan (Authorized Representative), PW-2 Sh.Raj Singh (Sr.Manager) and PW-3 Sh. Krishan Lal (lineman).
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/A. PW-2 Sh.Raj Singh deposed that as per direction of DGM Enforcement a team comprising of him, Sh. Suresh Chand (DET), Sh. Kishan Lal and Sh. Nagender Pal (both lineman), had conducted a raid on dated 01.11.2008 at about 12.45 PM at the premises bearing no. 1290, 1st floor, Ganj Meer Khan, Rakaab Ganj, Delhi. At the time of inspection accused Naresh was found indulging in direct theft of electricity by illegal tapping BSES Service Cable which was passing through the near by premises of accused. The entire connected load was running through this illegal wire to the tune of 8.258 KW for non domestic and domestic purpose (i.e 7.603 KW for domestic purpose and 0.655 for NX purpose). He prepared inspection report, load report was prepared by Sh. Suresh Chand, which bore his signature at point 'A. On his instruction member of raiding team took the photographs Ex.CW-2/D and their true copy of CD is Ex.CW-2/E. The line man cut the illegal wire and seized in a gunny bag with a seal of Manager Enforcement vide seizure memo Ex.CW2/C. After inspection they offered entire inspection report to the representative of the accused who refused to sign the same and did not allow to paste the same on the premises. Witness correctly identified the case property i.e the PVC copper wire Ex.P1.
Page 3 CC No.57/09 BYPL Vs. Naresh Kumar PW-3 Sh. Krishan Lal, Lineman deposed that on 01.11.2008, he was posted as lineman at Gandhi Market and on that day he accompanied the raiding team at premises bearing 1290, FF, Ganj Meer Khan, Raqab Ganj, Delhi. The raiding team consisted of him, Sh. Raj Singh, Sh. Suresh Chand and Sh. Nagender Pal and they inspected the premises in question. On the instruction of Sh. Raj Singh, he removed illegal wires from the premises in question and prepared the seizure memo Ex.CW-2/C at the site which bore his signature at point B. He also took photographs Ex.CW-2/D and identified the wires which were removed by him at the site i.e 2 nos. PVC copper wire blue in colour of size 7/22 SWG having length of 3 metes approx.
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. Parveen Yadav, 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 admitted that he had no knowledge as to who gave the information to DGM Enforcement to conduct the raid regarding the theft of electricity at the premises in question. The DGM had given the written reference to conduct the raid at the premises in question, the said written reference was placed in the office record, however was not produced in the court.
He had not collected any information / documents regarding the ownership of the premises in question. They inquired about the ownership of the premises from the neighbour but he do not Page 4 CC No.57/09 BYPL Vs. Naresh Kumar remember their names. He could not recognize the person shown in the photographs Ex.CW-2/D at mark X. One person present at the site disclose the name of accused as the user of the premises in question, but he could not tell his name. The name of PW-3 was not mentioned in the inspection report for taking of the photographs. There is no photograph showing the removal of alleged illegal wires.
No public person was made as a witness. He had not made any complaint to the police for initiating legal proceedings against the accused / representative of accused when he refused to sign the reports. 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. The company failed to prove the occupation of accused in the inspected premise. 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 by illegally tapping from BSES pole. The total connected load of 8.258 KW/DT (i.e 7.603 KW/DX + 0.655 KW/NX) was assessed by the inspection team illegally used by the accused for domestic and commercial purpose. The illegal material i.e two number of 7/22 SWG, PVC copper wire of blue colour of 3 mtr was seized vide seizure memo Ex.CW-2/3. The visual recording showing the irregularities was conducted by member of raiding team. The accused was booked for offence of direct theft of electricity. As per deposition of PW-2 and Page 5 CC No.57/09 BYPL Vs. Naresh Kumar PW-3 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.Suresh Chand (DET) and Sh. Nagender Pal (lineman) 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 inspection and seizure of the case property. It is not mentioned in the inspection report whether accused is 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.CW-2/A) in column no.2.2 name of the user is Naresh Kumar ("as stated"), however, it was not specified as to who disclosed the name of accused. As per compliant, the accused was present at spot, however PW-2 deposed that the representative of the accused was present at the spot. The name of representative of the accused was also not disclosed.
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 Page 6 CC No.57/09 BYPL Vs. Naresh Kumar 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.
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 Naresh 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 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 member of raiding team who took photographs.
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. 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).
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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 29.01.2009 after about 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 (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 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.
Page 8 CC No.57/09 BYPL Vs. Naresh Kumar 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 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 Page 9 CC No.57/09 BYPL Vs. Naresh Kumar the case by positive evidence as the testimony of PW-2 and PW-3 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 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 01.11.2008 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/18.12.2014
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CC No.57/09
BYPL Vs. Naresh Kumar
18.12.2014
Present: Sh. Jitender Shankar, Authorized Representative for the
complainant company.
Sh.Parveen Yadav, 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 cancelled 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/18.12.2014
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