Delhi District Court
Bypl vs . Abdul Hasan Etc. on 24 July, 2014
CC No: 964/07
Police Station: Pahar Ganj
BYPL Vs. Abdul Hasan Etc.
IN THE COURT OF SHRI ARUN KUMAR ARYA,
ADDITIONAL SESSIONS JUDGE, SPECIAL COURT
(ELECTRICITY), TIS HAZARI COURT, DELHI
CC No. 964/07
Unique case ID No.02402R0050742009
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
Sh. Nilesh Kumar, Adv. for the company.
Vs.
1. Abdul Hasan (Registered Consumer)
2. Abdul Hannan (User)
House No: 6820, GF, Quila Kadam Shariff,
Nabi Karim, Pahar Ganj, New Delhi ................ Accused
Through: Sh. Parveen Yadav, Adv. for accused no. 2.
Date of Institution : 05.11.2007
Judgment reserved on : 17.07.2014
Date of Judgment : 24.07.2014
Final Order : Acquitted
Page 1 of 15 (Arun Kumar Arya)
ASJ / Special Court (Electricity)
Tis Hazari Courts, Delhi / 24.07.2014
CC No: 964/07
Police Station: Pahar Ganj
BYPL Vs. Abdul Hasan Etc.
JUDGMENT
1. The case of the company, in brief, is that on 08.03.2007 at about 01:15 PM, an inspection was conducted by Sh. Ram Pher (DM), Sh. Veersen Singh (Engg), Sh. Ram Sant and Sh. Krishan Kumar (both lineman) at the premises bearing House No: 6820, GF, Quila Kadam Shariff, Nabi Karim, Pahar Ganj, New Delhi (hereinafter referred to as "subject premises").
During the inspection, team found that accused no. 1 was the registered consumer and accused no. 2 was the user of K number: 1130P4130343 having meter number 13080519 of the electricity connection at the subject premises and one phase single electronic meter found bypassed. The accused has taken direct supply from nearest pole using illegal black colour wire. The supply was being used for domestic as well as for industrial purpose to the total tune of 7.023 KW.
During the process of inspection, photographs and visual recording showing the irregularities were taken by the members of the raiding team through digital camera.
At the time of inspection Sh. Preetam Singh (Manager, Enforcement) was called at site to the material evidence i.e. one single phase electronic meter bearing no. 13080519 and PVC S/C Page 2 of 15 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 24.07.2014 CC No: 964/07 Police Station: Pahar Ganj BYPL Vs. Abdul Hasan Etc. aluminium wire two pieces of size 10 MM Sq. of black colour, length about 2+2 = 4meter.
The accused was illegally, unauthorizedly and dishonestly using the electricity for the commercial purpose. An assessment theft bill of Rs. 2,17,946/ was raised against the accused for theft of electricity.
2. The complainant company (to be referred as "company" hereinafter) i.e. BSES Yamuna Power Ltd has filed the present complaint case under section 135/150 read with section 151 of the Electricity Act, 2003 (hereinafter referred to as "Act) against the accused praying that accused be summoned, tried and punished as per law with a further prayer to determine the civil liability of the accused as per provisions of Section 154 (5) of the Act.
3. After recording the pre summoning evidence of company, the accused persons were summoned to face trial for the offence U/S 135 of the Electricity Act 2003 by my ld. predecessor vide order dated 23.11.2007. As accused no. 1 (Abdul Hasan) did not appear in the court, consequently he was declared proclaimed offender by order dated 07.09.2010 of my ld. predecessor.
4. Notice U/S 251 Cr.PC of offence punishable U/S 135 and 151 of Electricity Act, 2003 was framed against the accused no. 2 Page 3 of 15 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 24.07.2014 CC No: 964/07 Police Station: Pahar Ganj BYPL Vs. Abdul Hasan Etc. (Abdul Hannan) by my ld. predecessor on 12.01.2011 to which accused pleaded not guilty and claimed trial.
5. Complainant in support of its case examined 3 witnesses namely PW - 1 Sh. Rajeev Ranjan, PW - 2 Sh. Veersen Singh, PW - 3 Sh. Preetam Singh and PW - 4 Sh. Ram Sant.
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. PW1/A. PW - 2 Sh. Veersen Singh, deposed that on 08.03.2007, at about 1:15 PM, he along with Sh. Ram Pher (DM), Sh. Ram Sant and Sh. Krishan Kumar (both lineman) inspected the premises bearing no. 6820, GF, Quila Kadam Shariff, Nabi Karim, Pahar Ganj, New Delhi.
At the time of inspection, one single phase electronic meter was disconnected and idle. The supply was being used by the accused persons directly from the nearby pole. The supply was being used for domestic purpose to the tune of 3.223 KW and for industrial purpose to the tune of 3.800 KW. Total connected load was used by the accused persons to the tune of 7.023 KW.
The meter details report which is a part of inspection report (Ex. CW2/B) and load report (Ex. CW 2/B), bore his signature Page 4 of 15 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 24.07.2014 CC No: 964/07 Police Station: Pahar Ganj BYPL Vs. Abdul Hasan Etc. at point A. Sh. Krishan Kumar (Lineman) took the photographs (Ex. CW 2/D) and their true copy of CD (Ex. CW 2/E).
The inspection report was offered to the person who was present at site who refused to sign the same and did not allow to paste it the subject premises.
PW - 3 Sh. Preetam Singh, deposed that on 08.03.2007, he received a telephonic call from Sh. Ram Pher. He reached the premises in question and team members showed him the the theft of electricity. He instructed the team leader to remove the illegal cable and seized the case property, vide a seizure memo (Ex. CW 2/C) bore his signatures at point X. PW - 4 Sh. Narsi Nirwan, deposed that on 08.03.2007, he removed the illegal wire and single phase meter on the instruction of Sh. Ram Pher in the presence of Sh. Preetam Singh.
6. Statement of accused U/S 313 Cr.P.C. was recorded in which he denied the allegations against him and stated that he was falsely implicated in this case. He had no knowledge about the raid at the subject premises.
7. Sh. Parveen Yadav, Adv. for the accused had submitted that accused no. 2 (Abdul Hannan) has been falsely implicated the Page 5 of 15 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 24.07.2014 CC No: 964/07 Police Station: Pahar Ganj BYPL Vs. Abdul Hasan Etc. present case by the officials of the company. He had no knowledge of raid conducted at the subject premises.
During cross examination of PW 2 Sh. Veer Sen Singh admitted that he has no written permission for conducting the raid at the subject premises. He met one person who was shown in the photographs at mark 'X', and on his instance, the name of user Abdul Hannan was mentioned in the inspection report. He cannot tell the name of the persons present at the time of inspection.
He had not seen the documents pertaining to the subject premises. Public persons were not associated as witnesses. No hindrance was created at the time of raid. He had not inquired about the details of the meter installed at the subject premises from his office. He also did not mention the pole number from which the theft was carried out. He had not verified the documents pertaining to the ownership of subject premises. He had not pasted the documents / reports at the spot. He also did not verify the documents of installation of new connection.
PW 3 Sh. Preetam Singh admitted that case property was seized in his presence and there is not photograph of seizing it. He had not inquired about the meter installed at the premises from the office. He did not mention the pole number in seizure memo. He has Page 6 of 15 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 24.07.2014 CC No: 964/07 Police Station: Pahar Ganj BYPL Vs. Abdul Hasan Etc. not collected the documents pertaining to ownership of premises. He had not checked the documents from the registered consumer at the time of demanding of fresh connection to verify the factum of address of premises.
PW 4 Sh. Ram Sant deposed that he had not signed the inspection report and seizure memo. No photographs were filed on record which could show the removal of wire and meter from the site.
No signature of any public witness was obtained on the inspection reports. There was no evidence on record which connect the theft with the accused or his premises. People were present at site but company did not make them as a witness to prove their case. They also did not captured their photographs. It was contended that company had failed to prove its case so, accused is entitled to be acquitted in this case.
Per contra, counsel for the company made his submission that at the time of inspection 1phase electronic meter found bypassed and supply was running direct from nearest pole using illegal black colour wire. The supply was being used for domestic as well as for industrial purpose to the total tune of 7.023 KW.
The entire documents i.e. inspection report, load report, seizure memo prepared by the team of the company at the spot as Page 7 of 15 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 24.07.2014 CC No: 964/07 Police Station: Pahar Ganj BYPL Vs. Abdul Hasan Etc. per rules. The accused persons were booked for offence of direct theft of electricity. As per testimonies of witnesses, 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 perused the documents filed on record by the company and gone through the rival submissions made by counsel of parties.
As per complaint theft was going through bypassing the electronic meter and taken direct supply from nearest pole using illegal black colour wire and as per deposition of PW 2 Sh. Veersen Singh one single phase electronic meter was disconnected and idle. The supply was being used by the accused persons directly from the nearby pole. These facts are totally different as if the meter was disconnected and in idle position then how it is bypassed.
PW 2 Sh. Veer Sain Singh and PW 3 Sh. Preetam Singh, both witnesses admitted that they did not verify the documents produced by the registered consumer at the time installation of new meter. The number of K no. is written in the inspection report, however, it is strange that from whom they got the number, keeping in view the fact that connection number was not known to inspection team at the time of raid.
Page 8 of 15 (Arun Kumar Arya)
ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 24.07.2014 CC No: 964/07 Police Station: Pahar Ganj BYPL Vs. Abdul Hasan Etc. The name of accused no. 2 "Abdul Hannan" is given in the inspection report as the user of the electricity "as stated". PW 2 admitted in his cross examination that he mentioned the name of user as Abdul Hannan at the instance of the person present at the spot who was shown in the photographs mark X. The inspection team had neither mentioned the name of the abovesaid person, nor mentioned his relation with the accused. After the raid and before filing the present complaint there was sufficient time with the company to inquire and bring this person in the court. As per the recent judgment of Hon'ble High Court in Crl. L.P. No. 475/13 titled as BSES Yamuna Power Ltd Vs. Mohd. Sharif, the non - production of the lady in the court, who was present at spot was held to be fatal to the case of the company in the court. They also did not collect the documents which could show that accused was the user / owner of the subject premises.
Site plan is silent as address as well as mode of theft is not clearly mentioned. It is required to be proved specifically however the same was not done. The company was under obligation to prove this site plan which they failed to do so. The inspection report is silent on the aspect as to on which floor theft of electricity was going on.
In the complaint it is mentioned that raid was conducted Page 9 of 15 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 24.07.2014 CC No: 964/07 Police Station: Pahar Ganj BYPL Vs. Abdul Hasan Etc. as per the reference, but on whose reference it is not mentioned.
PW 4 Sh. Ram Sant stated in his examination that illegal wire and single phase meter was removed on the instructions of Sh. Ram Pher, however, he was not examined by the company which is mandatory on their part.
PW 2 Sh. Veer Sain Singh admitted during cross examination that no hindrance was created, it is very surprising at one side they said that no hindrance was created and on the other side they deposed that the person present at site refused to sign the reports and did not allow to paste the documents at the spot.
During cross examination PW 3 admitted that user as well as 23 persons were present at the spot and this fact was not mentioned by PW 2 or it was also not contended in the complaint Sh. Ram Sant and Sh. Krishan Kumar who were the member of the raiding team did not sign the documents. As per Regulation 25 (vii) Delhi Electricity Regulatory Commission (Performance Standards Metering and Billing) Regulation, 2002, the inspection report must be signed by each member of the joint team. The non signing of the inspection report by the other members of raiding team casts doubt on the report itself.
The inspection report (Ex. CW 2/A) states in the coloum Page 10 of 15 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 24.07.2014 CC No: 964/07 Police Station: Pahar Ganj BYPL Vs. Abdul Hasan Etc. Name of the user as Abdul Hannan ("as stated") it does not specify as to who told them the name of the accused whether it was accused or somebody else. No inquiry in this respect was conducted by the company before the filing of the complaint. The main point in this case is whether company has been able to prove beyond reasonable doubt that accused was the consumer as well as user of electricity at the time of alleged inspection. It is on record that the company did not procure the document pertaining to occupancy or the ownership of the inspected premises. No independent witness was examined to prove the occupancy of premises by accused otherwise. As per 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, wherein accused were acquitted as no inquiry in respect to occupancy of premises was conducted by the company.
This inspection was carried out in the year 2007, the company was under obligation to carry a written authority signed by designated officer of the licensee as per Regulations 25 (i) of the Delhi Electricity Regulatory Commission (Performance Standards Metering and Billing ) Regulations, 2002, which they failed to do and no such authority was placed on record either.
No independent person / witness was joined at the time of Page 11 of 15 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 24.07.2014 CC No: 964/07 Police Station: Pahar Ganj BYPL Vs. Abdul Hasan Etc. seizure of case property which was incumbent on their part to prove the seizure of the property. The company failed to comply Section 135 (3) & (4) of Electricity Act in respect to search and seized of case property. As per Section 135 sub clause (3) & (4) of the Electricity Act, 2003, the occupant of the place of search or any person on his behalf shall remain present during the search and list of all things seized in search shall be prepared and delivered to such occupant or person who shall sign the list. Reliance is placed on the judgment of Hon'ble High Court of Delhi in CRL.A. 438/2012 & Crl. M. B. 754/2012 titled as Manoj Kumar Vs. BSES Rajdhani Power Ltd. dated 14.05.2013.
PW 2 Stated in his examination in chief that Sh. Krishan Kumar (Lineman) took the photographs, but this persons 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. CW2/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 Page 12 of 15 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 24.07.2014 CC No: 964/07 Police Station: Pahar Ganj BYPL Vs. Abdul Hasan Etc. 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.
The inspection was carried out on 08.03.2007 and company has filed the case in the court on 05.11.2007 after a period of 8 months which remains unexplained on their part. The company could have filed complaint against the accused with the police to elucidate the entire facts of the case which the police could have done in more meaningful manner and particularly in a case where the alleged hindrance was caused by the public persons when the team try to paste the documents at the site. In this case police officials were with the team but no steps were taken by them. Unexplained delay always casts doubt on a prosecution case.
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 Page 13 of 15 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 24.07.2014 CC No: 964/07 Police Station: Pahar Ganj BYPL Vs. Abdul Hasan Etc. 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 was also cited as a witness in the complaint. He was not examined in the court either, so the complaint Ex. CW 1/B remains unproved on record.
9. 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.
10. There are 3 material witness in this case on whose testimonies the entire case of the company is based. Their testimony does not inspire confidence as has already been discussed in the foregoing paras. Thus company failed to discharge its initial burden to prove beyond reasonable doubt that accused was in possession / Page 14 of 15 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 24.07.2014 CC No: 964/07 Police Station: Pahar Ganj BYPL Vs. Abdul Hasan Etc. user of the inspected premises. Reliance is placed on the judgment of our own High Court in Manoj Kumar (supra) case. 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 itself.
In view of the foregoing discussion, the company has failed to prove its case against the accused no. 2 (Abdul Hannan) 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 08.03.2007 be released by the company after expiry of period of appeal.
Case be retrieved as and when accused no. 1 (Abdul Hasan) is brought or produced before the court U/S 299 Cr.P.C.
File be consigned to record room.
Announced in open court (Arun Kumar Arya)
ASJ/Special Court (Elect.)
Tis Hazari/Delhi/24.07.2014
Page 15 of 15 (Arun Kumar Arya)
ASJ / Special Court (Electricity)
Tis Hazari Courts, Delhi / 24.07.2014