Delhi District Court
Bypl vs .C.L. Kapoor Page 1 on 31 July, 2018
IN THE COURT OF MS REKHA
ADDITIONAL SESSIONS JUDGE, (SPECIAL COURT) CENTRAL,
ELECTRICITY, TIS HAZARI COURT, DELHI
CC No. 232/09
New Case no.325756/16
U/s 135, 138 and 151 of the Electricity Act, 2003
BSES Yamuna Power Ltd.,
Having its Registered office at:
Shakti Kiran Building Karkardooma
Delhi - 110032.
Also at:
Corporate, Legal and Enforcement Cell,
IP Extension, Patparganj, Narwana Road,
(Near Sarswati Kunj), Delhi110092
Acting Through Mr. C.B. Sharma
(Authorized Officer) .......... Complainant
Verses
C.L. Kapoor
4228, Tel Mandi,
Paharganj, Dehli110055 ............Accused
Date of Institution : 13.07.2009
Date of Judgment : 31.07.2018
Final Order : Acquitted.
JUDGMENT
BYPL Vs .C.L. Kapoor page 1 1). The complainant company i.e. BSES Yamuna Power
Ltd. (in short BYPL) has filed the present compliant case under Section 135, 138 & Section 154(5) of the Electricity Act, 2003 (hereinafter referred as 'Act') against the accused praying that accused be summoned, tried and punished as per law and for determining the civil liability of the accused.
2). The brief facts in narrow compass, relevant and necessary for the disposal of the present case are that the accused was the user and registered consumer of user of meter No. 23321220 (hereinafter referred as subject meter). It is also stated that in response to the MMG complaint 51182, the premises No. 4228, Tel Mandi, Paharganj, Delhi110055 (hereinafter referred as subject property) was inspected on 17.10.2008 and the subject meter was showing the current reading 9370. It is also stated that on the inspection of the meter prima facie suggested the possibilities of the dishonest abstraction of energy (in short DAE).
BYPL Vs .C.L. Kapoor page 2 Hence, the meter was seized vide bag No. 126898 and bag seal No. 224733 and sent it MMG laboratory at Savita Vihar, Sub Station , near LSC Main Market, Savita Vihar, Delhi. It is also stated that accused was informed vide letter no. 51182 dated 17.10.08 for his presence or through AR on 21.10.2008 for witnessing the investigation/testing process and said letter was duly received by the accused and the same bearing the signature of the accused. It is also stated that accused was not present at the time of testing of meter in lab and the MMG laboratory has forwarded the energy meter test/analysis report No. BY173086 dated 30.10.2008 to the complainant company with following observation:
i. Extra four holes found at the back side of terminal as per visual report. The photograph showed the holes clearly. The holes were done by drilling machine.
ii. Accuracy of the meter could not be tested due to the meter being tampered. Further the report affirmed that the meter was BYPL Vs .C.L. Kapoor page 3 tampered.
It is also also stated that as per the direction of DGM (Enforcement), on the basis of Lab report No. BYPL173086 dated 31.10.2008, an inspection/raid was carried out on 24.11.2008 at 12.15 P.M. at the subject property by the joint inspection team of the complainant company. The inspection team was consisted of Sh. Ratan SinghSr.Manager), Sh. KhalilUr RehmanDET and Sh. Anil KumarLineman. The inspected premises consisted of ground, first, second and third floor. It is also stated that during the course of insepction, inspection, one single phase electronic meter bearing No. 14131226 was found installed. The alloted category and sanctioned load was for commercial puropse and 5. KW. It is also stated that subject property was occupied and used by D.Kapoor and Company Chartered Accountant, therein one shop was being run in the name board showing Dish TV, another STD PCO and another BYPL Vs .C.L. Kapoor page 4 mobile communication. It is also stated that the connected load to the inspected premises had been assessed by the inspection team as 16.206 KW/NX against the sanctioned load of 5.00 Kw/NX.
Accordingly, load report was prepared at site. It is also stated that the accused refused to sign, acknowledge and accept the inspection report, load report, meter status report, seizure memo and show cause notice were prepared by the members of the raiding team at the time of raid/inspection. The same were not allowed to paste on the wall of inspected premises. Thus, the same had been sent through speed post. It is also stated that at the time of inspection, necessary videography was taken by the members of the raiding team qua the connected load at the possible extent.
Thereafter, second show cause notice dated 19.12.2008 for DAE was served upon the accused to file reply within three days from the date of receipt of show cause notice alongwith necessary documents and in support of BYPL Vs .C.L. Kapoor page 5 contention on 09.01.2009 and further appear in person/authorized representative for a personal hearing on 15.01.2009 before the Assessing Officer at Enforcement Cell, Saraswati Kunj, Narwana Road, Patparganj, Delhi but accused neither attended nor submitted any reply to the show cause notice which inter alia confirms that the accused has agreed to the contents of the show cause notice and has noting to say his defence, therefore, no alternative left except to process the case exparte. Thereafter, on the basis of material available and fact and circumstances of the case, a speaking order dated 22.01.2009 was passed by the Assessing Officer. Hence, the theft assessment bill for DAE in the sum of Rs. 3,27,564/ has been raised by the complainant company against the accused which has not been paid by the accused. In given fact and circumstances of the case, present complaint case has been filed U/s 151 of the electricity Act, 2003 for offences under section 135 and 138 and interalia for determination of civil liabilities under section 154(5) of the Electricity Act, 2003.
BYPL Vs .C.L. Kapoor page 6 3). The complainant company led the pre summoning
evidence. Vide order dt. 04.09.2009, the accused was summoned for the offence alleged against him. Vide order dt. 08.08.2011, notice u/s 251 Cr.PC was served upon the accused for the offence punishable u/s 135, 138 and 151 of Electricity Act, 2003, to which accused pleaded not guilty and claimed trial.
4). In this case, the complainant company has examined only four witness, so as to prove its case, namely PW1 Sh. Ratan SinghSr. Manager (O&M), PW2Sh. Rajeev Ranjan AR, PW3Sh. Nirakar RoyGeneral Manager and Sh.Prasantjit Asst. Manager.
5. As per the testimony of PW1Sh. Ratan SinghSr.Manager, on 24.11.2008, he was posted as Sr. Manager (Enforcement) Gandhi Market Office. On that day, as per the instruction of DGM (Enforcement), they conducted an inspection at about 12.15 PM, BYPL Vs .C.L. Kapoor page 7 at premises bearing No. 4228, Tel Mandi, Pahar Ganj, Delhi. The raiding consisted of himself, Sh. KhailUrREHMAN (DET) and Sh. Anil Kumar (L/M). During the course of inspection, one electronic meter was found installed at the premises in question in place of tampered meter. The inspection report (already Ex. CW2/B) was prepared at site and bears his signature at point X. The photographs were prepared by the team member and CD containing the video already Ex. CW2/D. Nothing was seized at the time of inspection.
6). PW2-Sh.Rajeev Ranjan is a formal witness. PW1 stated to the extent that the present complaint case Ex.CW1/A had been filed by the complainant company through by C.B. Sharma who was duly authorized to file the same. He also stated that complainant company also executed POA dated 29.08.2006 in his favour by CEO-Arun Kanchan. He also stated that on the basis of Inspection Report, Load Report, Enforcement Department of complainant company prepared the theft bill for an amount of Rs. 3,27,564 which is already Ex.
BYPL Vs .C.L. Kapoor page 8 CW2/G. 7). As per testimony of PW3 Nirakar RoyGeneral
Manager, in the year 2008, he was posted as Assessing Officer in the complainant company at Patparganj. In this matter, a second and final show cause notice was issued by him to the accused to appear before him for personal hearing on dated 15.01.2009 at 10.30 am to 12.30 PM. The said show cause notice (already Ex. CW2/E) bears his signatures at point A. He also testified that on the basis of entire inspection report, load report, meter detail report, laboratory and consumption pattern of the abovesaid consumer, he passed a detail speaking order which was marked as MarkA dated 22.01.2009 which bears his signature at pointB. He also testified that meter was found tampered (extra 4 number of holes found at back side of terminal). Low consumption pattern and laboratory conclusive statement of meter BYPL Vs .C.L. Kapoor page 9 found tampered dishonest abstraction of energy was substantiated against the consumer. DAE was established under tariff schedule 2007 Regulation 52 & 53 of Metering and Billing Regulation of DERC and section 135 and 138 of Electricity Act, 2003. The consumption pattern fund 10.20% (approx.) which is much less than the prescribed limit of DERC.
He also testified that after examining the entire documents and evidence on record, he came to the conclusion that present matter falls into the category of DAE and he also instructed the department to raise the bill as per the connected load found in the premises at the time of inspection and also instructed the consumer to raise the connected load to the total tune of 16.206 KW for nondomestic purpose as that much load was found at the time of inspection. This is his true statement.
8). As per testimony of PW4Sh. PrasanjitAsst. Manager, in the year 2008, he was posted as Engineer at BYPL BYPL Vs .C.L. Kapoor page 10 Laboratory situated at Savita Vihar, Delhi. A single phase meter No. 23321220 make KAIFA was tested in the laboratory of BYPL on 31.10.2008 by Sh. Shashank (DET). On the basis of test, the meter found tampered and lab report was prepared by Shashank and approved by Devender Verma (Manager). He also testified that he could identify the signatures of Shashank at point A and Devender Verma at point B on lab report EX. PW4/A. The photograph of meter was also in the laboratory, the same was already on record and Ex. DW1/A. He also testified that he could identify the case property on the basis of record if shown to him. At that stage, a bag sealed with the court seal was produced and opened and meter was taken out and shown to the witnesses. After seeing the meter witness correctly identified the same and pointed out the four extra holes on the back side of meter terminal block. He also testified that same were shown in the photograph Ex. DW1/A. BYPL Vs .C.L. Kapoor page 11
9). Thereafter, statement U/s 313 Cr.P.C, of accused had been recorded, in which he has denied the allegations against him and admitted that inspection was carried out on 24.11.2008. He also stated that on 17.10.2008, the old meter was removed by the officials of the complainant and a new meter was installed on the same day. However, the meter was not tampered. He also stated that the complainant has taken the highly exaggerated load. He admitted that the videography was conducted at the site however, no alleged irregularities was done by him or anyone in respect of the meter in question. He also stated that no reports were prepared in his presence. The alleged tampered (old meter) was already removed and on the date of inspection the said meter was not seized. He also admitted that he had received the second and final show cause notice dated 19.12.2008 and he also replied to the said show cause notice through speed post. However, he had not received the first show cause notice. He also stated that the meter in question was not tested before him and he also was not called to witness the testing of meter. He also stated that he had not received any copy of speaking order. He also stated that the complainant had wrongly raised the impugned bill against him and it did not pertain to him as he had not tampered the meter. He also stated that he had not BYPL Vs .C.L. Kapoor page 12 indulged in the alleged offence of meter tampering. The first show cause notice was not received by him and signatures reflected on first show cause notice dated 17.10.2008 was not his signature and same had been forged and fabricated. He also stated that he had been falsely implicated in the present case.
Accused choose to lead DE.
10. Accused tendered his evidence by way of affidavit and examined himself as DW1 and testified that following documents are relied upon:
Sl. No. of Exhibits Details of Documents
No.
1 Ex. DW1/A Evidence of accused by way of affidavit
2. DW1/1 Letter dated 17.10.2008
3. Ex. DW1/2 Meter Change Report
4. Ex. DW1/3 (OSR) Show Cause notice
5. Ex. DW1/4 RTI Application dated 24.05.2010
6. Ex. DW1/5 Electricity bills for the month of August
2008
7. Ex. DW1/6 Electricity bills for the month of October
2008
BYPL Vs .C.L. Kapoor page 13
11. I have heard the arguments and perused the material available on record as well as relevant provisions.
The provision of Regulation 52 (ix) of Delhi Electricity Supply Code and Performance Standards Regulation, 2007, is reproduced as under:
(ix) The report shall be signed by the Authorized Officer and each member of the inspection team and the same must be handed over to the consumer or his/her representative at site immediately under proper receipt. In case of refusal by the consumer or his/her representative to either accept or give a receipt, a copy of inspection report must be pasted at a conspicuous place in/outside the premises and photographed. Simultaneously, the report shall be sent to the consumer under Registered Post.
It is to note here that as per the complainant, the accused refused to sign, acknowledge and accept the inspection report, load report, meter status report, seizure memo and show cause notice were prepared by the members of the raiding team at the time of raid/inspection. The same were not allowed to paste on the wall of inspected premises. Thus, the same had been sent through BYPL Vs .C.L. Kapoor page 14 speed post.
Here, it is relevant to pen down that PW1 did not testify anything regarding alleged refusal of alleged of aforesaid reports. He also did not testify that same were not allowed to be pasted and also did not testify regarding sending of alleged reports through speed post.
It is to note here that no document has been proved on record that the accused had been served the inspection report through Speed post.
Therefore, the inspection team has not complied with the abovesaid mandatory regulation which certainly goes against the complainant company. Thus, complainant company failed to prove that abovesaid alleged reports were ever served upon the accused.
It is also relevant to pen down here that as per the testimony of the PW1Sh. Ratan Singh, there were three members in the alleged inspection team namely Ratan SinghSr. Manager, BYPL Vs .C.L. Kapoor page 15 KhailUrRehmanDET and Anil Kumar Lineman and inspection report Ex. CW2/B bears his signature at point X. It is very relevant to pen down here that perusal of the inspection report Ex. CW2/B, it is found that only two signatures are appearing.
It is worthwhile to mention here that during cross examination, PW1 stated that signatures of lineman did not bear on the inspection report.
Here, it is said that what stopped the third one alleged lineman to sign the alleged inspection report. It is further view of the Court is that in view of relevant Regulation 52 (ix) of Delhi Electricity Supply Code and Performance Standards Regulation, 2007, the inspection report should have signed by all the members.
In light of abovesaid discussion, view of the Court is BYPL Vs .C.L. Kapoor page 16 that Regulation 52 (ix) of Delhi Electricity Supply Code and Performance Standards Regulation, 2007 has not been complied with by the alleged inspection team members.
It is to note here that as per the complaint, meter was seized vide bag No. 126898 and bag seal No. 224733 and sent it MMG laboratory at Savita Vihar, substation, Near LSC main market, Savita Vihar, Delhi and further the accused informed vide letter No. 51182 dated 17.10.08 be present in person or through the authorized representative on 21.10.08 for witnessing the investigation/testing process. The aforesaid letter was duly received by the accused and the same bearing the signature of the accused.
It is worthwhile to mention here that PW1 who as per the case of the complainant is star material witness did not utter a single word regarding seizing and sending of the meter, intimating to the accused as stated in the complaint. So, here view of the BYPL Vs .C.L. Kapoor page 17 Court is that mere say is not sufficient that alleged subject meter was seized and sent to the laboratory and the accused was intimated regarding testing of the alleged subject meter specially when the accused stated in his statement that the meter in question had not tested before him and he had also not been called to witness the testing of meter.
It is to note here that as per the testimony of PW4Sh. PrasantjitAsst. ManagerBYPLLab, on the basis of test, the meter found tampered and lab report was prepared by Shashank and approved by Devender Verma (Manager). During cross examination, he admitted that meter was not tested in his presence. The report was not prepared in his presence. Here, view of the Court is that the complainant company should have examined alleged officers namely Shashank and Devender Verma who had allegedly prepared and approved the alleged report. Had, the complainant company examined them, the accused definitely would have got the opportunity to cross BYPL Vs .C.L. Kapoor page 18 examine them.
Here view of the Court is that the complainant company failed to prove the Lab Report i.e. Ex. PW4/A on the basis of which the present complaint case has been filed.
The provision of Regulation 53 (ii) of Delhi Electricity Supply Code and Performance Standards Regulation, 2007, is reproduced as under:
(ii) During the personal hearing, the Licensee shall give due consideration to the facts submitted by the consumer and pass, within three days, a speaking order as to whether the case of theft is established or not. Speaking Order shall contain the brief of inspection report, submission made by consumer in his written reply and oral submissions during personal hearing and reasons for acceptance or rejection of the same.
It is very relevant to pen down here that as per the testimony of PW4Sh. Nirakar RoyGeneral Manager, second and BYPL Vs .C.L. Kapoor page 19 final show cause notice was issued to accused to appear before him for personal hearing on dated 15.01.2009 at 10.30 am to 12.30 p.m. and on the basis of entire inspection report, load report, meter detail report, laboratory report and consumption pattern of the consumer, he passed a detailed speaking order MarkA on 22.01.2009 which bears his signature at point B. Here view of the Court is that the alleged speaking order dated 22.01.2009 should have passed within three days from the date of alleged personal hearing but it was passed after three days of date of alleged personal hearing I.e.15.01.2009. No reason assigned for delay in passing the alleged speaking order. Hence, the complainant company has not complied with the aforesaid regulation.
It is also relevant to pen down here that as per the testimony of PW1Sh. Ratan Singh, the photographs were prepared by the team member and CD containing the video is BYPL Vs .C.L. Kapoor page 20 already Ex. CW2/D. During crossexamination, he stated that his linemanAnil Kumar took the photographs and made video simultaneously. It is to note here that no linemanAnil Kumar who allegedly took photographs and made video has been examined by the complainant company in this case.
Moreover, the complainant company has also not relied upon the requisite certificate u/s 65B of the Indian Evidence Act, so as to prove the alleged videography Ex.CW2/D. Thus, the complainant company has failed to prove the videography in the present case in accordance with law. Therefore, the alleged videography Ex.CW2/D is of no help for the case of the complainant company.
In this case, the inspection team has not joined the independent public persons during inspection. PW1 did not testify regarding joining of public person. Further, in the inspection report Ex.CW2/A also nothing has been mentioned that any efforts were made by the team to join the public persons in the inspection.
BYPL Vs .C.L. Kapoor page 21 Public person should have been joined in the inspection. Therefore, nonjoining of the public persons during inspection also goes against the complainant company.
As per the testimony of PW1, there were three members of the alleged inspection team. It is very relevant to pen down here that complainant company examined only one alleged member out of alleged three members of alleged inspecting team.
More so, nothing came out from the crossexamination of accused helping the case of complainant company.
In view of abovediscussion, the complainant company has failed to prove the offence alleged against the accusedC.L. Kapoor beyond reasonable doubt in the present case. Thus, the accused namely C.L. Kapoor is entitled for acquittal. Accordingly, accused namely C.L. Kapoor is acquitted for the offence punishable Under Section 135, 138 and 151 of the Electricity Act, 2003. Bail bond of the accused stands canceled and his surety is also discharged. Amount, if any, deposited by the accused as a BYPL Vs .C.L. Kapoor page 22 condition for bail or in pursuance to interim order of the court qua the theft assessment bill raised by the company on the basis of inspection dated 24.11.2008 be released by the complainant company after expiry of the period of appeal. It is to note here that bail bond U/s 437 (A) Cr.P.C. of accused has been furnished and accepted. File be consigned to record room after due compliance. Digitally signed by
REKHA REKHA
Date: 2018.07.31
17:06:16 +0530
Announced in open court (Rekha )
on day of 31 July ,2018. ASJ(Special Court)Electricity, st Central/Tis Hazari Courts, Delhi BYPL Vs .C.L. Kapoor page 23