Delhi District Court
Through : Sh. Jitender Shankar vs . on 21 February, 2015
IN THE COURT OF SHRI ARUN KUMAR ARYA,
ADDITIONAL SESSIONS JUDGE, SPECIAL COURT
(ELECTRICITY), TIS HAZARI COURT, DELHI
CC No. 107/08
Unique case ID No. 02402R0855072008
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.
Rukhsar
House No: 632, Rang Mahal
Ganj Meer Khan, Delhi ................ Accused
Through: Sh. Parveen Yadav, Adv. for accused
Date of Institution : 22.01.2008
Judgment reserved on : 19.02.2015
Date of Judgment : 21.02.2015
Final Order : Acquitted
CC No: 107/08
Police Station: Darya Ganj
BYPL Vs. Rukhsar
1/16
JUDGMENT
1. As per complaint, on 27.06.2007 at 11:30 am, a mass raid was conducted by the joint team of complainant company consisted of Sh. R. V. Singh (AM), Sh. Satish Kumar (DET), Sh. Shakeel and Sh. Satveer Sharma (both linemen) along with Manager - I Enforcement
- I, CISF personnel, HC Sh. Daya Nand and Constable Shah Dev at the premises bearing house no. 632, Rang Mahal, Ganj Mir Khan, Delhi (to be referred as "premises" hereinafter). As per inspection, no meter was found at site and accused was found to be user (as stated) indulging in direct theft of electricity. User tapped the common service line (passer - by) cable of BSES through illegal wire and connected it to the internal house wiring. The electricity was being used for domestic purpose to the tune of 11.040 KW.
2. Necessary photographs were taken by the inspection team showing the irregularities by the inspecting team. The illegal material used for the abstraction of the electricity was seized as the material evidence vide seizure memo by Sh. D. P. Singh (Manager Enforcement) i.e. PVC aluminium cable, one 2X6 Mm Sq. / 3 meter of black colour. The accused was booked for the offence of direct theft of electricity. Subsequently, theft assessment bill for sum of Rs.2,21,395/ was raised against the accused. On the failure of CC No: 107/08 Police Station: Darya Ganj BYPL Vs. Rukhsar 2/16 accused to deposit the same, present complaint was filed against them.
3. 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.
4. The accused was summoned U/S 135 of the Electricity Act 2003 by my ld. predecessor vide order dated 07.02.2008 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 16.04.2010 to which he pleaded not guilty and claimed trial.
5. Complainant in support of its case examined four witnesses i.e. PW- 1 Sh. Rajeev Ranjan (Authorized Representative), PW - 2 Sh. Satish Kumar (DET), PW - 3 Sh. Raj Vir Singh (Senior CC No: 107/08 Police Station: Darya Ganj BYPL Vs. Rukhsar 3/16 Manager), PW - 4 Sh. D. P. Singh (Assistant Vice President).
PW - 1 Sh. Rajeev Ranjan deposed that the present complaint Ex. CW1/B was filed by Sh. C. B. Sharma. The company executed a power of attorney in his favour Ex. CW1/A. PW - 2 Sh. Satish Kumar deposed that on 27.06.2007 a mass raid was conducted at the premises bearing no. 632, Ranj Mahal Ganj Mir Khan, Delhi by the Enforcement team consisting of Sh. R. B. Singh, Sh. Satbir Sharma and Sh. Shakil Ahmed along with Delhi police from police station Chandni Mahal (HC Dayanand and constable Sehdev). At the time of inspection, accused was using the electricity supply directly by tapping through illegally black colur wire from BSES common service line and entire connected load of the premises was running through the illegal wore. No meter was found installed at site. Reports such as Inspection report (Ex. CW 2/A), meter details report (Ex. PW 2/1) and load report (Ex. CW 2/B) were prepared at site which bore his signature at point 'A'. Inspecting team members took photographs (Ex. CW 2/D) and CD (Ex. CW 2/E) from the spot.
Illegal wires was removed from the site and seized in a gunny CC No: 107/08 Police Station: Darya Ganj BYPL Vs. Rukhsar 4/16 bag with the seal of D P Singh vide seizure memo (Ex. CW 2/C) bore his signature at point A. He identified the case property i.e. one PVC aluminium black colour wire, 2X6 MM, 3 meters in length.
PW - 3 Sh. Raj Vir Singh that on 27.06.2007, he along with Sh. Satish Kumar, Sh. Satbir Sharma and Sh. Shakil Ahmed along with local Delhi Police from police station Chandni Mahal with HC Dayanand and Constable Sehdev conducted a mass raid at the premises bearing no. 632, Rang Mahal, Ganjmir Khan, Delhi and deposed on the lines of PW - 2.
PW - 4 Sh. D. P. Singh deposed that on 27.06.2007, he was posted as Manager Enforcement - I at Gandhi Market. On that day, he was supervising 2 - 3 teams during mass raid was conducted at the premises bearing no. 632, Rang Mahal, Ganjmir Khan, Delhi and he received a telephonic call from Sh. R. V. Singh. After he reached at the site, he instructed the team leader to remove the illegal cable from the site. Team prepared the seizure memo (Ex. CW 2/C) bore his signature at point C.
6. In statement recorded U/S 313 Cr.PC, accused had denied the allegation and stated that he has been falsely implicated in CC No: 107/08 Police Station: Darya Ganj BYPL Vs. Rukhsar 5/16 the present case and no raid was conducted at his premises.
7. 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.
In his cross examination PW - 1 Sh. Rajeev Ranjan admitted that he was not the member of the raiding team. He had filed the complaint on the basis of the official records.
During cross examination, PW - 2 Sh. Satish Kumar, he admitted that they called Sh. D. P. Singh at site after removing the illegal material. Preparation of the inspection report and seizing of the material was not photographed.
PW - 3 Sh. Raj Vir Singh admitted during his cross examination that accused and one another lady was present at the site at the time of inspection. The present at site herself told him that her name is Rukhsar. One board was affixed on which name of accused Rukhsar was written. Team did not took any photographs of the board.
CC No: 107/08 Police Station: Darya Ganj BYPL Vs. Rukhsar 6/16 PW - 2 Sh. Satish Kumar could not identify the accused in the court. Team did not make the police personnel as a witness. The team did not mention the pole number from which the common service line was coming. He could not tell the exact number of consumer for which the common service line was used. He did not inquire about the ownership of the other consumers.
PW - 4 Sh. D. P. Singh admitted that no written authority was given for conducting the raid. He has no personal knowledge about the preparation of all reports except the seizure memo as he had gone only to seize the material.
No public person was joined as a witness. 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. It was contended that company had failed to prove its case so, accused is entitled to be acquitted in this case.
8. Per contra, counsel for company has argued that during CC No: 107/08 Police Station: Darya Ganj BYPL Vs. Rukhsar 7/16 inspection, no meter was found installed at site and user was found indulging in direct theft of electricity by tapping the passer by common S/line cable of BSES through illegal wire and connected to internal house wiring. The accused used the load of 11.040 KW for domestic purpose.
At the time of inspection, possible photographs were taken by the inspection team. Illegal tapping was removed and seized in the presence of Sh. D. P. Singh, Manager - I, Enforcement
- I. The accused was booked for offence of direct theft of electricity. As per deposition of company witnesses the company has proved 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 considered the arguments of counsel for both parties.
PW - 3 Sh. Raj Vir Singh admitted in his cross examination that one board with the name of accused Rukhsar was affixed but team did not take any photographs of the board. PW - 2 and PW - 3 could not identify the accused in the court. The Hon'ble Delhi High Court in Crl. M.C. 2296/2008 titled as BRPL & Ors. Vs. CC No: 107/08 Police Station: Darya Ganj BYPL Vs. Rukhsar 8/16 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 and on whose instance the name of accused was written in the inspection report. An office order bearing no. BSES/RPL/HOD/001 dated 30.08.2008 already exists in this respect. Company has failed to adhere to abovesaid guidelines.
The company failed to examine Sh. Shakeel and Sh. Satveer Sharma who were members of raiding team in the court. No explanation has been assigned for non examination of these witnesses. The team did not make the police personnel as a witness. The team had not collected documents i.e. ID proof pertaining to the ownership of the premises. 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 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 CC No: 107/08 Police Station: Darya Ganj BYPL Vs. Rukhsar 9/16 of accused by positive evidence. In the inspection report (Ex. CW2/A) in column no. 2.2 name of the user (as stated) mentioned as Rukhsar ,however, it was not specified as to who disclosed the name of accused.
The team did not mention the pole number from which the common service line was coming. PW - 3 did not identify the consumer by whom the common service line was used. They did not inquire about the ownership of the other consumers who were using the electricity from the same common service line. PW - 3 admitted that when they asked the lady present at site to show the documents, ID proof pertaining to ownership of the premises, she refused to show the same. It is very surprising when police officers were with the team then why they did not lodge FIR against the accused.
PW - 2 and PW - 3 did not disclose the connected load or its purpose for theft. Both witnesses never disclosed that illegal material was seized by calling Sh. D. P. Singh at site.
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 CC No: 107/08 Police Station: Darya Ganj BYPL Vs. Rukhsar 10/16 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.
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 ''Rukhsar'' 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.
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 inspection was carried out on CC No: 107/08 Police Station: Darya Ganj BYPL Vs. Rukhsar 11/16 27.06.2007, however, complaint in the present case was filed on 22.01.2008 which is approximately 7 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.
In the complaint, in the pre - summoning evidence, in the inspection report as well as deposition of witnesses who were examined in the court, it is mentioned that photographs (Ex. CW 2/D) were taken by joint inspected team. None of the witnesses examined CC No: 107/08 Police Station: Darya Ganj BYPL Vs. Rukhsar 12/16 in the court 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. 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.
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 CC No: 107/08 Police Station: Darya Ganj BYPL Vs. Rukhsar 13/16 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) 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.
CC No: 107/08 Police Station: Darya Ganj BYPL Vs. Rukhsar 14/16
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.
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 CC No: 107/08 Police Station: Darya Ganj BYPL Vs. Rukhsar 15/16 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 27.06.2007 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/21.02.2015
CC No: 107/08
Police Station: Darya Ganj
BYPL Vs. Rukhsar
16/16