Delhi District Court
Through: Mr. Ashutosh Kumar vs . on 17 December, 2016
IN THE COURT OF SHRI LAL SINGH
ADDITIONAL SESSIONS JUDGE, SPECIAL COURT
(ELECTRICITY), TIS HAZARI COURT, DELHI
CC No.711/10
New case No. 322715/16
BSES Rajdhani Power Ltd.,
Having its Registered office at:
BSES Bhawan, Nehru Place,
New Delhi-110019.
Also at:
Corporate, Legal and Enforcement Cell,
Near Andrews Ganj Market,
New Delhi-110049.
Through: Mr. Ashutosh Kumar
(Authorized Officer) ...........Complainant
Vs.
1) Praveen Yadav (User)
2) Narayan (User)
3) Archana Sahib (R/C) W/o Praveen Yadav
............. Accused
All At: N-54, Chankaya Place,
Part-II Uttam Nagar,
New Delhi-110059
Date of Institution : 30.08.2010
Judgment reserved on : 29.11.2016
Date of Judgment : 17.12.2016
JUDGMENT
1). Brief facts of the case are that on 01.05.2008 at about 11.50 A.M., an inspection was carried out at the premises bearing at N-54, Chankaya Place, Part-II Uttam Nagar, New Delhi-110059, by the joint inspection team of the complainant company. The inspection team of the complainant company was comprised of Sh.
CC No.711/10 BRPL Vs. Praveen Yadav & Ors. Page 1 of 11 New case No.322715/16Amit Kumar (Assistant Manager), Sh. Sanjeev Vashist (Engineer), Sh. Priyesh Harrison (Engineer) and Sh. Deepak Sharma (LM). During the inspection of the premises, accused no.1 and 2 were found to be the Users and accused no.3 as registered consumer of the electricity supply in the premises in question. It is also stated that two meters were found installed at the time of inspection at the site and electricity was being used for non-domestic purpose. It is alleged that at the time of inspection, illegal wires were found on the roof of the inspected premises and one end of the said wires were connected to the change-over switch and other end found lying near LV mains, which indicated the case of direct theft of electricity. The total connected load at the time of inspection in the premises was found as 19.934 KW/NX/DT for non-domestic purpose. The inspection team also prepared inspection report and load report at the site. Further, necessary videography/ photography was also conducted by the inspection team showing the irregularities at the site of inspected premises. It is alleged against the accused that the illegal wires could not be seized due to heavy resistance by the consumer. The show cause notices were also issued against the accused no.1 & 3 vide show cause notice dated 01.05.2008 for attending personal hearing on 19.05.2008, show cause notice dated 30.05.2008 for attending personal hearing on 13.06.2008 and third show cause notice dated 04.07.2008 for attending personal hearing on 09.07.2008. It is also averred by the company that the accused have neither filed reply nor attended personal hearing in respect of first two show cause notices dated 01.05.2008 and 30.05.2008 respectively. It is further averred that in response to show cause notice dated 04.07.2008, accused no.1 (Praveen Yadav) had filed reply and also attended the personal hearing on 09.07.2008 and whereby accused no.1 denied of committing any alleged theft of electricity. Thereafter, assessing officer of the company had passed the speaking order dated 10.09.2008, thereby confirmed the allegation of direct theft of electricity against the accused persons. The complainant company CC No.711/10 BRPL Vs. Praveen Yadav & Ors. Page 2 of 11 New case No.322715/16 has also raised the theft assessment bill in the sum of Rs. 7,27,338/- against the accused persons for the theft of electricity. Thus, complainant company has filed the present complaint case against the accused persons for the offence punishable u/s 135/150 of Electricity Act, 2003, with the prayer to determine the civil liability u/s 154 (5) of Electricity Act, 2003.
2). Thereafter, the complainant company led the pre summoning evidence. Vide order dt. 28.10.2010, accused were summoned to face the trial for the offence alleged against them. After that vide order dated 03.05.2011, notice u/s 251 Cr.P.C. has been framed against the accused persons for the offence punishable u/s 135 & 150 of Electricity Act, 2003, to which accused persons pleaded not guilty and claimed trial.
3). In this case, the complainant company has examined only three witnesses, so as to prove its case namely, PW1 Sh.Amit Kumar (Manager), PW2 Sh. Sanjeev Vashist (Engineer), PW3 Sh. Binay Kumar (AR of the complainant company).
4). Thereafter, statements u/s 313 Cr.P.C of accused have been recorded, in which accused have denied the allegations against them. Accused no.1 & 3 submitted that the premises was in the name of accused no.3. Accused submitted that no raid was conducted in the premises in question and no reports were prepared and also no photographs were taken in their presence. Accused also stated that they have not received any show cause notice dated 01.05.2008 vide Ex.CW2/D. Accused submitted that they have been falsely implicated in the present case.
5) However, accused have not led the defence evidence so as to substantiate their contention as made by them in the statement u/s 313 Cr.P.C.
CC No.711/10 BRPL Vs. Praveen Yadav & Ors. Page 3 of 11 New case No.322715/166). Arguments of Learned Counsels for the parties heard.
7). Sh. Saurav Bajaj, Ld. Proxy Counsel for the complainant company submitted that accused had been found indulging in direct theft of electricity at the time of inspection. He further submitted that accused were using the electricity for the non-domestic purposes and the connected load was found as 19.934 KW for non-domestic purpose at the time inspection. He also submitted that the complainant witnesses have proved the offence alleged against the accused.
8). On the other hand, Sh. Praveen Yadav, Ld. counsel for accused submitted that the accused have been booked by the complainant company in the present case, only on the presumption as the alleged illegal wires were stated to be found lying on the roof of the premises. He also submitted that in the inspection report also it has been mentioned that it was a case of suspected theft. Counsel for the accused submitted that the show cause notice as well as speaking order could not be proved by the company. Counsel for the accused submitted that the complainant company has failed to prove the offence alleged against the accused.
9). I have considered the submissions of Ld. Counsels for the parties and also perused the evidence on record.
10). In the instant matter the complainant company has examined only three witnesses so as to prove its case. PW1 Sh. Amit Kumar (Manager), PW2 Sh. Sanjeev Vashisth (Engineer) and PW3 Binay Kumar (AR of the company).
In the present case, PW3, Sh. Binay Kumar (AR of the complainant company) is a formal witness, who stated to the extent that the present complaint case Ex.CW1/A has been filed by Sh. Ashutosh Kumar, the then AR of the company. PW3 also stated CC No.711/10 BRPL Vs. Praveen Yadav & Ors. Page 4 of 11 New case No.322715/16 that he has no personal knowledge of the present case and he never visited the premises in question.
Admittedly, PW3 was not the member of the inspection team. Thus, PW3 is a formal witness and hence he has no much help for the case of the complainant company.
11) In the present matter, the inspected premises is not in dispute. There is no denial on the part of the accused persons qua the ownership of premises in the name of accused no.3. Moreover, accused no.1 and 3 stated in their statement u/s 313 Cr.PC that accused no.3 is the owner of the premises in question. In the inspection report also accused no.3 (Archana Sahib) has been shown as registered consumer of the premises. Accused no.3 is the wife of accused no.1 (Praveen Yadav). Therefore, the premises in question belongs to accused no.1 & 3 and complainant company also established the same.
12) PW1 Sh. Amit Kumar and PW2 Sh. Sanjeev Vashist are the only material witnesses as examined by the complainant company as they both were members of the inspection team which inspected the premises in question on 01.05.2008.
PW1 (Sh. Amit Kumar) and PW2 (Sh. Sanjeev Vashist) deposed that they alongwith Sh. Priyesh Harrison (Engineer) and Sh. Deepak Sharma (LM) inspected the premises in question on 01.05.2008 and at the time of inspection, two meters were found installed at the site and both the meters were being used for non-domestic activities, while connections were sanctioned for domestic purpose. PW1 and PW2 also deposed that when they went on the roof of the premises, they found illegal wires lying there and one end of the wires were connected to changeover switch and other end found lying near LV mains. As per PW1 and PW2, the connected load of the premises was found to the tune of CC No.711/10 BRPL Vs. Praveen Yadav & Ors. Page 5 of 11 New case No.322715/16 19.934 KW as being used for commercial purpose. PW1 and PW2 also stated that necessary photographs were taken by Sh. Priyesh Harrison, who was also the member of the inspection team. PW1 and PW2 also stated that they tried to seize the illegal wires but the same could not be seized due to heavy resistance of the consumer. PW1 and PW2 deposed that inspection report, load report and meter details report were prepared at the site and offered to the consumer present at the site but who refused to receive the same. During trial, PW1 and PW2 identified accused no.2 (Narayan) and also stated that accused no.2 had disclosed that accused no.1 was the owner of the premises.
Now, perusal of the complaint Ex.CW1/A shows that inspection team consisted of three members namely Sh. Amit Kumar, Sh. Sanjeev Vashist and one other person, however, the name of other member has not been mentioned in the complaint Ex.CW1/A. In the column of names of member of inspection team, Sr. No.II has been left blank and no name is mentioned against the Sr. No.II in the column of names of raiding team members. PW1 and PW2 in their testimonies stated that apart from them, Sh. Priyesh Harrison (Engineer) and Sh. Deepak Sharma (LM) were also the members of inspection team, whereas the names of Sh. Priyesh Harrison and Sh. Deepak Sharma have not been mentioned in the complaint Ex.CW1/A. PW1 and PW2 as well as PW3 (AR of the company) have not clarified as to why the names of other two members of the inspection have not been mentioned in the complaint Ex.CW1/A. Thus, it creates strong doubt about as to actually how many members were there in the inspection team. Therefore, all these discrepancies and lacunas goes against the company.
13) Moreover, in the inspection report Ex.CW2/A, there is no mention of pasting of reports at the site. Though in the inspection report, it is mentioned that the evidence could not be CC No.711/10 BRPL Vs. Praveen Yadav & Ors. Page 6 of 11 New case No.322715/16 collected due to heavy resistance of the consumer, but at the same time there is no mention as to what efforts were made in pasting the reports. PW1 and PW2, who were members of the inspection team stated nothing about pasting of the reports. Though, PW1 and PW2 stated that the reports were handed over to the consumer present at the site but who refused to accept the same. However, they have also failed to give any cogent explanation as to what steps they have made in pasting the reports. Moreover, PW1 and PW2 in their cross examinations also admitted that no documents were pasted at the wall of the premises of accused persons at the time of inspection.
The provision of regulation 52 (ix) Delhi Electricity Supply Code and Performance Standards Regulation, 2007, is reproduced as under:-
"The report shall be signed by 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".
Otherwise also, if there was resistance in pasting the reports, then the inspection team could have taken the assistance of the local police. There is no mention in the inspection report as well as in the testimonies of PW1 and PW2 regarding any request made to the local police for assistance. This shows that the inspection team has not taken any sincere efforts in pasting the reports. Further, the perusal of inspection report and load report vide Ex.CW2/A and Ex.CW2/B respectively, shows that only three members of the team have signed the above reports and one members of the team has not signed the reports, as PW1 and PW2 stated that the inspection team consisted of four members including CC No.711/10 BRPL Vs. Praveen Yadav & Ors. Page 7 of 11 New case No.322715/16 PW1 and PW2. Therefore, the inspection team has not complied with the above provision at the time of inspection, which also weakens the case of the company.
14) In this case, the alleged wires stated to be used by accused for committing of theft of electricity were not seized by the inspection team. In the inspection report Ex.CW2/A, it is mentioned that evidence could not be collected due to heavy consumer resistance. PW1 and PW2 also deposed that they tried to seize the illegal wires but the same could not be seized due to heavy consumer resistance. If there was resistance by consumer/ accused in seizing the case property, then the inspection team should have taken the help of local police in seizing the case property as the case property would have been the vital evidence against the accused for alleged theft of electricity. However, only saying that the wires could not be seized due to heavy resistance by the consumer, clearly shows that no concrete or sincere efforts were made by the inspection team in seizing the case property. Thus, by not seizing the case property the inspection team has left a very serious lacuna in the present case which certainly goes against the complainant company.
15) The allegation against the accused persons is for a suspected theft of electricity. In the inspection report Ex.CW2/A, it is mentioned that it is the case of UUE/suspected theft. PW1 and PW2 in their respective cross examinations, categorically admitted that only on the basis of suspected theft, they have booked the accused persons in the present case. Moreover, PW1 and PW2 also specifically admitted that the wires lying on the roof were not connected with the LV mains and no theft was going on at the time of inspection. Thus, it is apparently clear that at the time of inspection no direct theft of electricity was found committing by accused persons. Admission of PW1 and PW2 that accused were booked only on the basis of suspected theft and there was no direct CC No.711/10 BRPL Vs. Praveen Yadav & Ors. Page 8 of 11 New case No.322715/16 theft electricity at the time of inspection, has demolished the very foundation of case of the complainant company.
16) In this case, during the Inspection of the premises in question, the Inspection Team had not joined the public persons in the Inspection. PW1 and PW2 have stated nothing regarding any efforts in joining the public persons in the inspection. In the inspection report Ex.CW2/A also there is no mention, if any efforts were made by inspection team to join the public persons in the inspection. Moreover, the public persons ought to have been joined in the inspection particularly, it was a case of suspected theft of electricity. Had the independent public persons would have been joined in the inspection then the things would have been more clear, if there was actually any theft or suspected theft of electricity or any resistance by the consumer at the site in seizing the case property. Therefore, by not joining the public persons in the inspection, the inspection team has left the serious lacuna which ultimately goes against the company.
17) PW1 and PW2 stated that Sh. Priyesh Harrison (Member of inspection team) had taken the photographs vide Ex.CW2/C (colly) and CD of the same was also prepared vide Ex.CW2/C1. Perusal of the photographs Ex.CW2/C (colly) shows that these photographs are the printout of the photographs. The original photographs have not been placed on record by the complainant company. Further, the printout of the photographs Ex.CW2/C (colly) and the CD Ex.CW2/C1 have not been proved by the Complainant company in accordance with law as the requisite certificate u/s 65B of the Indian Evidence Act has not been filed by the company. Moreover, Sh. Priyesh Harrison, who stated to have taken the photographs, has also not been examined by the company so as to prove Photographs Ex.CW2/C and CD Ex.CW2/C1. The company should have examined the photographer so as to prove the photographs. In the absence of CC No.711/10 BRPL Vs. Praveen Yadav & Ors. Page 9 of 11 New case No.322715/16 mandatory certificate u/s 65B of the Indian Evidence Act, the photographs and CD as placed on record are of no much help to the case of the complainant company. Thus, the complainant company has failed to prove the photographs and CD in accordance with law.
18) Moreover, in this case final notice dated 30.05.2008 and show cause notice dated 04.07.2008 as well as speaking order dated 10.09.2008 have not been proved by the complainant company. Complainant company has not examined the Assessing Officer, who has issued the final notice dated 30.05.2008. Further, the company has also not examined the Assessing Officer, who has issued show cause notice dated 04.07.2008 and passed the speaking order dated 10.09.2008. Otherwise also, no copy of postal receipts etc have been placed on record so as to show the service of the abovesaid notices and also delivery of the speaking order to the accused. The complainant company ought to have examined the Assessing Officers, who have issued the abovesaid notices and passed the speaking order so as to prove the same. Further, the complainant witnesses have stated nothing about the abovesaid show cause notices and speaking order. Further, show cause notice dated 01.05.2008 vide Ex.CW2/D has also not been proved by the company as no receipt of the service of the same to the accused persons has been placed on record. Moreover, it is stated by PW1 and PW2 that the accused refused to accept the show cause notice dated 01.05.2008 vide Ex.CW2/D, however, perusal of the show cause notice Ex.CW2/D, shows that no refusal is mentioned in the said show cause notice and further as to whom the said show cause notice was offered has also not been mentioned. Therefore, the abovesaid show cause notices and the speaking order remained unproved in this case.
19) In view of the foregoing reasons as discussed above, the complainant company has failed to prove the offence alleged CC No.711/10 BRPL Vs. Praveen Yadav & Ors. Page 10 of 11 New case No.322715/16 against the accused beyond reasonable doubt in the present case. Thus, the accused are entitled for acquittal. Accordingly, the accused are acquitted for the offence punishable u/s 135/150 of the Electricity Act, 2003. Bail bond of the accused stands canceled and sureties discharged. Amount, if any, deposited by the accused as a 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 01.05.2008 be released by the company after expiry of the period of appeal.
20) Accused to furnish bail bond in terms of Section 437 (A) Cr.P.C.
21) File be consigned to record room.
Announced in open court ( Lal Singh )
on 17th day of December, 2016 ASJ(Special Court)Electricity,
Tis Hazari Courts, Delhi
CC No.711/10
BRPL Vs. Praveen Yadav & Ors. Page 11 of 11
New case No.322715/16
CC No. 711/10
BRPL Vs. Parveen Yadav & Ors.
New case no.322715/16
17.12.2016
Present : Sh. Pankaj Bhatty, AR of the complainant
company.
Sh. Praveen Yadav, counsel for all accused with all accused.
Vide separate judgment, accused are acquitted for the offence punishable U/s 135/150 of Electricity Act, 2003. Bail bond of the accused are cancelled and sureties are also discharged. Amount, if any, deposited by the accused persons as a 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 01.05.2008 be released by the company to the accused after expiry of period of appeal.
However, in terms of Section 437 (A) Cr.PC., accused are directed to furnish bail bonds for the amount of Rs.15,000/- each 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.
Bail bonds under section 437 (A) Cr.PC furnished and same stands accepted.
File be consigned to record room.
( Lal Singh ) ASJ/Special Court (Elect.) Tis Hazari/Delhi/17.12.2016 CC No.711/10 BRPL Vs. Praveen Yadav & Ors. Page 12 of 11 New case No.322715/16