Delhi District Court
Bypl vs . Anand Etc. on 7 June, 2014
CC No: 960/07
BYPL Vs. Anand Etc.
IN THE COURT OF SHRI ARUN KUMAR ARYA,
ADDITIONAL SESSIONS JUDGE, SPECIAL COURT
(ELECTRICITY), TIS HAZARI COURT, DELHI
CC No: 960/07
Unique case ID No.02402R0008752009
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, Authorized Representative along
with Sh. Nilesh Kumar, Adv. for complainant company.
Vs.
1. Anand (Tenant)
E16 / 88990, Bapa Nagar,
Gali No. 1, Padam Singh Road,
Karol Bagh, Delhi
Also At:
4/868, Gali no. 11, Bihari Coloney,
Shahdra, Delhi
Through : Sh. Sunil Kumar, Adv.
2. Mohan Singh (Landlord)
3. Jagdish (Landlord)
Page 1 of 18 (Arun Kumar Arya)
ASJ / Special Court (Electricity)
Tis Hazari Courts, Delhi / 07.06.2014
CC No: 960/07
BYPL Vs. Anand Etc.
Both R/o: E16/88990, Bapa Nagar,
Gali No. 1, Padam Singh Road,
Karol Bagh, Delhi ................ Accused
Through : Sh. Parveen Yadav, Adv.
Date of Institution : 05.11.2007
Judgment reserved on : 30.05.2014
Date of Judgment : 07.06.2014
Final Order : Acquitted
JUDGMENT
1. 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 having its branch office at different places in Delhi. The company is the licensee for supply of electricity in major parts of Delhi, including the premises no. E16/88990, Bapa Nagar, Gali No. 1, Padam Singh Road, Karol Bagh, Delhi where the offence has been allegedly committed by the accused.
The present case was filed through Sh. C. B. Sharma, Authorized Representative. Thereafter, Sh. Rajeev Ranjan and later on Sh. Mukesh Sharma was substituted as authorized representative by order of this court.
2. As per the complaint, on 23.03.2007 at 5:15 PM, as per Page 2 of 18 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 07.06.2014 CC No: 960/07 BYPL Vs. Anand Etc. direction of Manager, Operation and Manager (PNR), an inspection was conducted at E16/88990, Bapa Nagar, Gali No. 1, Padam Singh Road, Karol Bagh, Delhi (To be referred as "subject premises"
hereinafter) by the team comprising of Sh. D. K. Arya (AM), Sh. Likhi Ram (AM), Sh. Suresh Kumar (Engineer), Sh. Mahesh Kumar Jajoria (Engineer) and Sh. Ashok Kumar (Lineman) At the time of inspection, team found that accused no. 1 who was user and the tenant under the accused no. 2 and 3 was indulging in theft of electricity bypassing the meter.
The officials of the company clicked necessary photographs at the site with the help of digital camera. The total connected load i.e. 9.133 KW which was illegally used by the accused for ironing work i.e. industrial purpose.
As per procedure, Manager O & M Sh. Athar Javed was called at site and in his presence the material used for direct theft of electricity was seized. After the raid inspection, load reports were tendered to the illegal user but he did not come forward to sign the report and same were not pasted due hindrance created by him. The accused was booked for the offence of direct theft of electricity.
3. Subsequently, theft assessment bill in the sum of Rs.3,60,875/ was raised against the accused. On the failure of the Page 3 of 18 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 07.06.2014 CC No: 960/07 BYPL Vs. Anand Etc. accused to deposit the same, present complaint was filed against the accused.
4. The accused was summoned U/S 135 of the Electricity Act 2003 by my ld. predecessor vide order dated 23.11.2007 after recording the pre - summoning evidence. Notice U/S 251 Cr.PC of offence punishable U/S 135 and 151 of Electricity Act, 2003 was framed against all accused persons by my ld. predecessor court vide order dated 24.01.2009 to which all accused persons pleaded not guilty and claimed trial.
5. Complainant in support of its case examined 4 witnesses namely PW1 Sh. Rajeev Ranjan, PW2 Sh. Likhi Ram, PW3 Sh. Devender Kumar Arya and PW4 Sh. Athar Javed.
PW1 Sh. Rajeev Ranjan deposed that the present complaint Ex.CW1/B was filed by Sh. C. B. Sharma. He was authorized to represent the company vide letter of authority in his favour Ex. PW1/A. PW2 Sh. Likhi Ram deposed that on 23.03.2007 at about 05:15 PM he along with Sh. D. K. Arya (Assistant Manager), Sh. Suresh Kumar (Engineer), Sh. Mahesh Kumar (Engineer) and Sh. Ashok Kumar (Lineman) conducted a inspection / raid at premises bearing no. E - 16 / 889 - 90, Gali No. 1, Bapa Nagar, Karol Bagh, Page 4 of 18 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 07.06.2014 CC No: 960/07 BYPL Vs. Anand Etc. Delhi.
At the time of inspection, accused Anand was found indulging in direct theft of electricity through by passing of meter by illegal wire in the premises. The electricity was used for industrial purpose. The accused was working a business with the help of steam press and stitching work. The connected load of 9.133 KW was used by accused.
The inspection report (Ex. CW2/A), load report (Ex. CW2/B) bore his signatures at point A. The photographs of D. T (Direct Theft) mode and connected load were taken by the member of the raiding team (Ex.CW2/D) and the CD (Ex.CW2/E). The material was removed and seized in the presence of Sh. Athar Javed, Manager O & M. The witness correctly identified the seized case property i.e two core aluminium wire 2X10 MM Sq. having 5 meter length of black colour wire as Ex. P1 and carbon copy of seizure memo as Ex. P2.
PW 3 Sh. Devender Kumar Arya, deposed that on 27.03.2007, he along with Sh. Likhi Ram, Sh. Suresh Kumar, Sh. Mahesh Kumar Jajoria and Sh. Ashok Kumar had conducted a raid at the subject premises and deposed on lines of PW 2 Sh. Likhi Ram.
PW - 4 Sh. Athar Javed, deposed that on 27.03.2007, he received a telephonic call from Sh. Kapil Kumar Pandey. He reached Page 5 of 18 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 07.06.2014 CC No: 960/07 BYPL Vs. Anand Etc. the premises in question and seized the case property. Seizure memo (Ex. CW 2/C).
6. In their statement recorded U/S 313 Cr.PC, accused persons denied the allegation against them.
Accused no. 1 states that he is the tenant of one Sh. Jai Prakash of premises bearing no. E16/888, Padam Singh Road, Karol Bagh, New Delhi and he is falsely implicated.
Accused no. 2 and 3 stated that they were falsely implicated in the present case and booked as an accused at the instance of accused no. 1.
7. Both counsels argued that no raid was conducted at the premises belonging to the accused persons and the case is purely based on hearsay evidence.
While cross examination on behalf of accused no. 1, PW 1 Rajiv Ranjan admitted that he had not placed any document regarding the authority given to Sh. Arun Kanchan (CEO) by BSES Yamuna Power Ltd by passing any resolution. Resolution in favour of Sh. C. B. Sharma is not on record and GPA is filed.
PW 2 Sh. Likhi Ram in his deposition admitted that there was no necessity to inform the police before or after conducting the raid. He tried to collect the documentary proof to show that accused Page 6 of 18 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 07.06.2014 CC No: 960/07 BYPL Vs. Anand Etc. no. 1 was the tenant of the premises in question but same was not given as landlord of the premises was not present there. After the raid documents were not collected to check that accused no. 1 was the tenant.
2 3 laborers of the accused were present at the spot but their photographs were not taken. They did not try to take signatures of the laborers. Accused refused to sign the reports, even then police was not informed of the incident. He did not remember the name of the member of the raiding team who took the photographs at site. The electricity wire produced in the court is easily available in the market. Raid was not conducted on information. Memory card of the digital camera was not filed on record. Raid was also conducted at the first floor of the same building. Public persons were not made as a witness at the time of raid.
This witness did not make inquiry that accused Anand was tenant and accused Mohan and Jagdish were the landlord.
He admitted that name of accused Mohan and Jagdish have been mentioned in the complaint as accused Anand stated that they were the landlords. He could not tell the name of the registered consumer of the meter in question in the inspection report as meter was in idle condition. Photographs of the meter was not taken during Page 7 of 18 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 07.06.2014 CC No: 960/07 BYPL Vs. Anand Etc. inspection. Cut mark in the incoming wire and meter were also not photographed.
PW 3 Sh. D. K. Arya, admitted that he did not collect any document regarding the tenancy of accused Anand Kumar. He could not tell the registered consumer of the electricity meter installed in the entire premises. He did not inquire from his office the name of the registered consumer of the meter. Local police was with the team. No police officials was made witness to the present case. Photographs were taken by the digital camera but he had not placed on record the memory card. He did not remember the name of the member of the raiding team who took the photographs.
PW 3 admitted that accused no. 2 and 3 were not present at spot. He could not tell whether the owner Jagdish and Mohan had knowledge about the present raid. There was no photograph of the meter and the cut from where the theft was being committed. He did not know in whose name the meter was installed. As the meter was at a height so the team could not seize the meter, the explanation of team does not seems plausible.
PW 4 Sh. Athar Javed admitted that he had not requested the police officers to put their signatures on the seizure memo. He had not prepared the seizure memo but signed the same. Page 8 of 18 (Arun Kumar Arya)
ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 07.06.2014 CC No: 960/07 BYPL Vs. Anand Etc. During cross examination of PW 4 admitted that no public witness joined the investigation.
Counsel for accused no. 1 urged that company had not seized the meter which was bypassed. They also did not mention the name of register consumer of the meter to prove their case against the accused. Accused no. 1 has nothing to do with the alleged offence.
Counsel for accused no. 2 and 3 urged that both the accused persons were falsely implicated in the present case. They have no knowledge about the theft. They are also not present at the time of inspection.
Both counsels argued that PW 2 mentioned the date of inspection as 23.03.2007, however, PW 3 and PW 4 mentioned the date of inspection as 27.03.2007.
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. No independent person was joined at the time inspection. The procedure for seizing the illegal material was not photographed / videographed. They also did not make the police personnels who were associated with the inspecting team as a witness.
Page 9 of 18 (Arun Kumar Arya)
ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 07.06.2014 CC No: 960/07 BYPL Vs. Anand Etc. Sh. Suresh Kumar, Sh. Mahesh Kumar Jajoria and Sh. Ashok Kumar who were member of the raiding team were not examined by the company. They did not collect any proof of occupation of the premises in question. It was contended that company had failed to prove its case so, all accused persons are entitled to be acquitted in this case.
Per contra, counsel for the company made his submission that accused team found that accused no. 1 who is user and the tenant under the accused no. 2 and 3 indulging in theft of electricity bypassing the meter. The officials of the company clicked necessary photographs at the site with the help of digital camera. The total connected load i.e. 9.133 KW which was illegally used by the accused for industrial purpose of ironing work.
They were booked for offence of direct theft of electricity. As per deposition of witnesses, the company has proved its case against the accused beyond reasonable doubt.
Counsel for the complainant company argued that accused no. 1 was present at the time of inspection and his presence was also photographed by the member of the raiding team. Accused no. 1 disclosed that he was the tenant of accused no. 2 and 3. Accordingly, all accused persons are liable to be convicted in this Page 10 of 18 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 07.06.2014 CC No: 960/07 BYPL Vs. Anand Etc. case.
8. I have perused the documents filed on record by the company and heard the rival submissions of parties.
As per complaint and as per statement of PW 2 Sh. Likhi Ram date of inspection is mentioned as 23.03.2007, but PW 3 and PW 4 stated in their examination - in - chief the date of inspection as 27.03.2007.
Company had not seized the entire illegal material from the site to prove their case against the accused as theft was committed through by passing the meter, however company has only seized the illegal wire from the site but did not seize the meter. Company has also not mentioned the name of the person from the member of the raiding team who actual took the photographs at site held to be fatal to the case of the company. As per judgment of Hon'ble High Court in 2012 (4) JCC 2713 titled as BSES Rajdhani Power Ltd. Vs. Sunheri & Ors., it is mandatory on the part of company to seize the entire illegal material from the site and to examine the videographer / photographer who took the videography or photography at site. In the present case, the non production of the entire illegal material from the site and non - production of the videographer in the court has weakened the case of the company. Page 11 of 18 (Arun Kumar Arya)
ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 07.06.2014 CC No: 960/07 BYPL Vs. Anand Etc. It was argued by the company that accused no. 1 was present at the time of inspection and his presence was also photographed by the member of the raiding team but at the same time, company failed to prove the photographs and CD filed on record as same were captured through digital camera, the memory chip which is installed in the digital camera was never produced before the court. 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 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 CD (Compact Disc) is an electronic record so there is no escape from the requirement of proving it in accordance with law of the maker of the video is not examined in the court.
The name of the accused no. 1 (Anand) is given in the inspection report as the user of the electricity and also mentioned that accused no. 1 is tenant of accused no. 2 and 3. In order to prove the guilt of accused persons the company is required to prove the facts as under: Page 12 of 18 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 07.06.2014 CC No: 960/07 BYPL Vs. Anand Etc.
(a) Whether the subject premises were raided by the officials of the company on 23.03.2007 or 27.03.2007.
(b) Whether the theft of electricity was going on the time of raid.
(c) Whether accused no. 1 was the user and tenant of accused no. 2 and accused no. 3 at the time inspection. The status of accused no. 1 was not mentioned in the inspection report as to how he was occupying the subject premises. No documents were brought on record whether accused no. 1 is the tenant of accused no. 2 and 3. Failure to make inquiry in this respect puts shadow on the case of company. 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, in which accused were acquitted as no inquiry in respect to occupancy / tenancy of premises was conducted by the company.
In the complaint it was clearly mentioned that the illegal user did not come forward to sign the report and did not allow the Page 13 of 18 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 07.06.2014 CC No: 960/07 BYPL Vs. Anand Etc. team to paste the same at the subject premises. It does not appeal to common sense when that team was associated with the local police then illegal user allowed to take photographs from the site then how he not allowed the team to paste the documents at the site or did not sign the reports.
As per complaint and depositions of witnesses who were present in the court stated that accused no. 1 was present at site but at the bottom of the inspection report column only word "refused" mentioned. It remains unclear as to who refused to sign the documents whether it was accused or some other person.
Sh. Mahesh Kumar Jajoria and Sh. Ashok 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.
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 Page 14 of 18 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 07.06.2014 CC No: 960/07 BYPL Vs. Anand Etc. Metering and Billing ) Regulations, 2002, which they failed to do and no such authority was placed on record either.
It was further contended that no independent person / witness was joined at the time of seizure of case property which was incumbent on the part of company to prove their case. Thus the company failed to comply Section 135 (4) of Electricity Act in respect to search and seizure of case property. 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.
The real question in this case is whether company has been able to prove beyond reasonable doubt that out of the 3 accused persons who was the tenant, who was the owner and who was the registered consumer at the time of alleged inspection. It is on record that the company did not procure the document pertaining to tenancy or 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 of Delhi in Cr. L. P. 475/2013 titled as BSES Yamuna Power Ltd Vs. Mohd. Sharif dated 26.03.2014.
The inspection was carried out on 23.03.2007 and Page 15 of 18 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 07.06.2014 CC No: 960/07 BYPL Vs. Anand Etc. company has filed the case in the court on 05.11.2007 after a period of approximately 10 months which remains unexplained on their part. The company could have filed complaint against the accused with the police to extract 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 the team.
Company has not mentioned the name of the registered consumer whose meter was bye passed. This important piece of evidence should have been brought on record.
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, Page 16 of 18 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 07.06.2014 CC No: 960/07 BYPL Vs. Anand Etc. 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 only 2 key witnesses 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 / user of the inspected premises. (Manoj Kumar case (supra). More over, the non adherence to the statutory regulations by the members of the Page 17 of 18 (Arun Kumar Arya) ASJ / Special Court (Electricity) Tis Hazari Courts, Delhi / 07.06.2014 CC No: 960/07 BYPL Vs. Anand Etc. inspecting team while booking a case of theft as already discussed creates serious doubt on the inspection report itself.
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 persons are canceled and their sureties are discharged. Amount, if any, deposited by the accused persons 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 23.03.2007 be released by the company after expiry of period of appeal.
File be consigned to record room.
Announced in open court (Arun Kumar Arya)
ASJ/Special Court (Elect.)
Tis Hazari/Delhi/07.06.2014
Page 18 of 18 (Arun Kumar Arya)
ASJ / Special Court (Electricity)
Tis Hazari Courts, Delhi / 07.06.2014