Delhi District Court
Bypl vs . Mohd.Rafiq on 1 December, 2014
CC No. 608/08
BYPL Vs. Mohd.Rafiq
IN THE COURT OF SHRI ARUN KUMAR ARYA,
ADDITIONAL SESSIONS JUDGE, SPECIAL COURT
(ELECTRICITY), TIS HAZARI COURT, DELHI
CC No. 608/08
Unique case ID No.02402R0048852009
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.
1) Sh.Nanak Chand
2) Mohd. Rafiq
Both R/o. H.No. 1770, FF,
Kucha Dakhni Rai,
Darya Ganj, Delhi ................ Accused
Through: Sh.Parveen Yadav, Adv. for accused
Date of Institution : 03.09.2008
Judgment reserved on : 20.11.2014
Date of Judgment : 01.12.2014
Final Order : Acquittal
JUDGMENT
1. As per complaint, on 12.06.2007 at 02.05 pm. a team comprising of Sh.R.P.Aggarwal (AM Enforcement), Sh. Akhilesh Kumar (GET), Sh.Munna Lal, Rakesh Ranjan and Sh.Zainul Hassan (all lineman) had conducted a raid at premises no. 1770, FF, Kucha Dakhni Rai, Darya Ganj, Delhi in the presence of Page 1 CC No. 608/08 BYPL Vs. Mohd.Rafiq representative of accused, who associated the joint team through out the inspection proceeding. However, he with malafide intention refused to sign the inspection report and did not allow to paste the same on the premises. At the time of inspection, one meter was existing at site but the supply was being used from the BSES service I/C cable, tapping through illegal wire. The visual recording showing the irregularities was conducted by M/s. Arora Photo Studio. The total connected load of 2.913 KW/DX/DT was assessed by the inspection team which was illegally used by the accused for domestic purpose.
Sh.Ashok Gupta (B.Manager) was called at site, the meter and illegal wire were removed by the team and seized vide seizure memo Ex.CW-2/3 prepared at site. The connection was sanctioned in favour of the accused no. 1 (Nanak Chand) but was being used by accused no.2 (Md.Rafiq). The accused no.1 has abetted the accused no.2 for committing direct theft of electricity.
The accused persons were booked for the offence of direct theft of electricity. Subsequently, theft assessment bill for sum of Rs.44,299/- was raised against the accused persons. 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. 1770, FF, Kucha Dakhni Rai, Darya Ganj, Delhi (to be referred as "premises in question" hereinafter) where the offence has been Page 2 CC No. 608/08 BYPL Vs. Mohd.Rafiq 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 06.10.2008 after pre-summoning evidence. However, during the course of trial, accused no.1 (Nanak Chand) was stated to have expired and the proceeding against him were dropped vide order dated 26.11.2008.
Notice u/s 251 Cr.PC of offence punishable u/s 135 and 151 of Electricity Act, 2003 was framed only against the accused no. 2 (Md. Rafiq) by my ld. predecessor vide order dated 11.09.2009 to which he pleaded not guilty and claimed trial.
4. Complainant in support of its case examined only one witness Sh.R.P.Aggarwal, (Sr.Manager), however, he was mentioned as PW-2, though the same should have been mentioned as PW-1.
PW-2 Sh. R.P.Aggarwal deposed that on 12.06.2007, he was posted as Senior Manager and on that day as per directions of Sh. Ashok Gupta (Business manager), he constituted an inspection team comprising him, Akhilesh Kumar (GET), Munna Lal, Rakesh Ranjan, Zanual Hassan (all lineman) and at around 2.00p.m. reached at the premises no.1770, 1st floor, Kucha Dakhni Rai, Darya Ganj. He found that accused Mohd. Rafiq was using the electricity supply directly from BSES service cable through illegal tapping with illegal wire for domestic purpose. At the time of inspection one electromechanical meter was found at site but no load was connected with the said meter. Total connected load of 2.913 KW was running through illegal wire directly from BSES service cable. On his direction, Prahlad from Arora Studio, recorded the videography of connected Page 3 CC No. 608/08 BYPL Vs. Mohd.Rafiq load and inspection. Inspection report Ex.CW-2/1 was prepared by him at site. He got prepared the connected load report Ex.CW-2/2 by Sh. Akhilesh Kumar GET. He removed one electromechanical meter, two pieces of white colour wire of length 1 feet each and got prepared the seizure memo Ex. CW2/3 through Sh. Akhilesh Kumar GET and the said material was sealed with the seal of Manager Enforcement. At the time of inspection accused was present at site but was not identified by him. The CD of the videography was Ex.CW-2/5. He correctly identified the meter no. C1102983 and two pieces white colour wire adjusted in wooden board as Ex. P1.
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 he was not carrying any written authority by his seniors to conduct the raid in question. He neither remember the area and size of the premises in question nor as to who was occupying Ground, second and Third floors. Raid was conducted on the 1st floor where the meter was installed. The theft was being committed by the accused with the help of seized wire i.e 3/20 SWG PVC white colour wire which was found to be connected to the service cable of abovesaid meter. Sh. Prahlad took videography. After going through the CDs, witness states that CDS pertains to the same premises, however, not to the present case. They did not paste copy of documents at the premises in Page 4 CC No. 608/08 BYPL Vs. Mohd.Rafiq question due to hindrance created at site by the persons present there, however in complaint there was no mention of hindrance.
No public person was made as a witness. He had not made any complaint to the police for initiating legal proceedings against the persons who created hindrance or refused to be witnesses. 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, one meter exist at spot, however, the electricity supply was being used directly from the BSES service I/C cable tapping through illegal wire. The video recording showing the irregularities was taken by videographer Prahlad. The illegal material i.e meter and wire was seized from the spot. The total connected load of 2.913 KW/DX/DT was assessed by the team illegally used by the accused for domestic purpose. The accused persons were 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 heard arguments of counsel for both parties.
Page 5 CC No. 608/08 BYPL Vs. Mohd.Rafiq The company failed to examine Sh.Akhilesh Kumar (GET), Munna Lal, Rakesh Ranjan, and Zainul Hassan (all 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-2/1) in column no.2.2 name of the user is Md.Rafiq ("as stated"), however, it was not specified as to who disclosed the name of accused. As per compliant, representative of the accused was present at spot, however PW-2 deposed that the accused was present at the spot. The name of representative of the accused was also not disclosed. The theft was being committed by the accused with the help of seized wire i.e. 3/20 SWG PVC white colour wire which was found to be connected to the service cable of abovesaid meter, however, the discription of seized wire was not mentioned in complaint. PW-2 deposed that due to hindrance created at site by the persons present there, they did not paste a copy of documents at the premises in question, however, the said fact of hindrance was neither mentioned in complaint nor reported to the police. Most importantly, neither the accused no.2 (Md. Rafiq) was identified in court nor CD was proved on record by PW-2 R.P.Aggarwal, who was the one and only witness to prove their case.
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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.
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 Md. Rafiq 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 videographer Prahlad, who recorded the videography.
The Compact disc (Ex.CW-2/5) 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 Page 7 CC No. 608/08 BYPL Vs. Mohd.Rafiq 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) 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 03.09.2008 after about 1 ½ year 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 Page 8 CC No. 608/08 BYPL Vs. Mohd.Rafiq 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 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 Page 9 CC No. 608/08 BYPL Vs. Mohd.Rafiq 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 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.
18. In view of the foregoing reasons, company has failed to prove its case against the accused no.2 (Md. Rafiq) 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 12.06.2007 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/01.12.2014
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CC No. 608/08
BYPL Vs. Mohd.Rafiq
01.12.2014
Present: Sh. Jitender Shankar, Authorized Representative for the
complainant company.
Sh.Parveen Yadav, Adv. for accused alongwith accused no.2 (Md.Rafiq).
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/01.12.2014
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