Delhi District Court
Acting Through Mr. Binay Kumar vs . on 25 October, 2019
IN THE COURT OF MS. REKHA
ADDITIONAL SESSIONS JUDGE, SPECIAL COURT
(ELECTRICITY), TIS HAZARI COURT, DELHI
CC No. 711/12
New case No. 323816/16
BSES Rajdhani Power Ltd.,
Having its Registered office at:
BSES Bhawan, Nehru Place,
New Delhi110019
Also at:
Corporate, Legal and Enforcement Cell
Near Andrew Ganj Market,
New Delhi110049
Acting through Mr. Binay Kumar,
(Authorized Officer) ......................Complainant
Vs.
1) Dev Kumar(User)
S/o Sh. Ramphal
2. Parvesh Shokeen (R/C)
S/o Surender Shokeen
Both at:
House At 1, Village Nilothi,
Near Jai Chand House,
Pole No. NGL G 626
Nangloi,
New Delhi110041 ..............Accused persons
BRPL Vs . Dev Kumar & Anr. CC No. 711/12 page 1
Date of Institution : 26.11.2012
Date of Judgment : 25.10.2019
Final Order : Both accused are acquitted.
JUDGEMENT
1). The complainant company i.e. BSES Rajdhani Power Ltd. (in short 'BRPL') has filed the present complaint case Under Section 135, 138, 150 and 154 (5) of the Electricity Act 2003, (hereinafter referred as 'Act') against the accused persons praying that accused persons be summoned, tried and punished as per law and for determining the civil liability of the accused persons.
2) The brief facts in narrow compass, relevant and necessary for the disposal of the present case are that as per complaint, the present complaint case has been filed by the complainant company acting through the Authorized Officer/representativeSh. Binay Kumar duly authorized vide General Power of Attorney dated 23.10.2006. It is also stated that BRPL Vs . Dev Kumar & Anr. CC No. 711/12 page 2 on 08.03.2011, premises bearing No. House at 1, VillageNilothi, near Jai Chand House, Pole No. NGL G 626, Nangloi, New Delhi 110041(hereinafter referred as subject premises) was visited by MMG Dept. of the complainant company where they found an electronic meter (hereinafter referred as subject meter) totally in burnt condition. The subject meter was in name of accused Parvesh Shokeen and service of the said meter was being used by accusedDev Kumar. The subject meter was replaced with new the new electronic meter bearing no. 27146390 by the officer of MMG department on 08.03.2011. As sight evidence suggested the possibility of dishonest abstraction of electricity/energy (in short DAE), hence the subject meter was seized in the bag bearing bag No. 442087 and bag seal No. 23635 and was then sent to the laboratory, in sealed condition for further analysis under the intimation to consumer that the subject meter would be desealed on 23.03.2011 at 10.30 AM/2.00 P.M. It is also stated that officer of the lab tested the subject BRPL Vs . Dev Kumar & Anr. CC No. 711/12 page 3 meter and as per Lab report No. BRPL/11/21530 dated 20.06.2011, observations were as under: (i) the meter plastic seal and holographs were found NV (ii) Meter LCD & LED were found not OK (iii) Meter serial No. cannot be identified (iv) Accuracy could not be done (v) Meter data cannot be downloaded.
It is also stated that in conclusion, the officers of the Lab declared that meter found abnormal burnt.
On the findings of the Lab Report, an inspection/raid was carried out by the joint inspection team of the complainant company on 28.03.2012 at 01.30 P.M. at the subject premises. The inspection team of the complainant company comprised of Sh. Ajay SharmaManager, Sh. Sandeep Kumarengineer and ShivjeetLineman. The accused no. 1 was the user and the accused no. 2 was the registered consumer of the electricity supplied at the subject premises and meter was found to be tampered. During inspection, following observations were made:
a) Single phase electronic meter bearing No. 27146390 with BRPL Vs . Dev Kumar & Anr. CC No. 711/12 page 4 current reading 11616 Kwh and 12204 KVAH was found installed at site.
b) joint team checked the connected load subject premises which was found to be 52.221 KW/IX.
It is also stated that during the course of inspection, the member of the raiding team as per the procedure prepared the Seizure Memo at site, however, no material evidence was seized at the time of inspection as the faulty meter was already seized on 08.03.2011 and was sent to the lab. Joint inspection report alongwith meter detail report, load report and seizure memo were prepared at the time of inspection. At the time of inspection, necessary videography of the connected load and the inspection was taken by the videographer Dalip of M/s Arora Photo Studio at the site. The accused present at site refused to sign the Inspection, Load and the Seizure Memo. Accordingly, a show cause notice for DAE was sent to the accused vide letter dated 12.08.2012 to show cause by filing a reply latest by 19.08.2011 and to attend the personal hearing on 25.08.2011 at around 11.00 A.M. before the Assessing Officer of the complainant company BRPL Vs . Dev Kumar & Anr. CC No. 711/12 page 5 and in reply, Dev Kumar attended personal hearing on 25.08.2011 and submitted that meter was installed outside of the factory. The meter might be burnt due to sparking. He was not aware of the exact reason of meter burning and the supply was being used for making plastic dana. Accordingly, the assessing officerSh. Sandipan Adhikari after examining the record passed an Speaking Order on 02.07.2012. The accused persons were using electricity illegally, by drawing the same dishonestly, from the complainant's system and deliberately destroyed the electronic meter installed so as to interfere with the proper accurate metering of the electricity. Consequently, an amount of Rs. 26,38,844/ was payable to the complainant by the accused for the wrongful abstraction, consumption, theft and use of electricity. Therefore, an assessment has been raised against the accused persons. A copy of the said assessment in form of a supplementary bill dated 09.07.2012 for theft of electricity has been served on the accused but accused persons willfully neglected to pay the same. Hence, BRPL Vs . Dev Kumar & Anr. CC No. 711/12 page 6 this present complaint case.
3). Thereafter, the complainant company led the pre summoning evidence. Vide order dated 08.08.2013, accused persons had been summoned to face the trial for the offence alleged against them.
4). Vide order dated 25.07.2017, notice U/s 251 Cr.P.C. has been served upon the both accused persons for the offence punishable U/s 135/138/150 of the Electricity Act, 2003 to which both accused persons pleaded not guilty and claimed trial.
5). In this case, the complainant company has examined five witnesses, so as to prove its case namely CW01Sh. Ajay Sharma, CW2Sh. Sandipan Adhikari, CW03Sh. Sandeep Kumar, CW04Sh. Dalip Kumar and CW05Sh. Gaurav Bajaj. BRPL Vs . Dev Kumar & Anr. CC No. 711/12 page 7
6). CW1 Sh. Ajay Sharma testified that on 28.07.2011, he along with Sh. Sandeep DET, Sh. Shivjeet LM, videographer from M/s Arora Photo Studio visited the premises bearing no. 1, Nilothi Village, Near Jai Chand House, Near Pole no.G626, New Delhi for inspection of the connected load in the said premises. During inspection, they captured the load of the premises, which were 52.2KW being used for Industrial purpose. The premises was being used by Sh. Dev, who was running a factory for PVC dana in the said premises. In the said premises, there was a electricity meter installed in the name of the Sh. Parvesh Shokeen. During the inspection videography was done by photographer Sh. Dalip, from M/s Arora Photo Studio, CD of which was Ex.CW2/F (objected to). They prepared the inspection report, load report, seizure memo which were already exhibited as BRPL Vs . Dev Kumar & Anr. CC No. 711/12 page 8 Ex.CW2/C (colly), Ex.CW2/D (colly), Ex.CW2/E bearing his signature at point A on each page. The user/accused Dev Kumar was present at the site and witness correctly identified the accusedDev Kumar.
7). CW2 Sh. Sandipan Adhkari testified that m eter bearing No. 27104242 was replaced by MMG on 08 th March, 2011. Meter was tested in lab on 20.06.2011 and found abnormally burnt. Based on lab report, an inspection was carried out on 28.07.2011 whereby 52.221 KW load was found connected for industrial purpose. Consumer was issued show cause notice already Ex. CW2/G to appear for personal hearing on 25.08.2011. Dev Kumar attended personal hearing on 25.08.2011. Consumption for the period of one year prior to replacement i.e. March, 2010 to March 2011 found 5667 units per month which was 26% of assessed consumption. He had passed speaking order already EX. CW2/I which bore his signature at point A based on Inspection report, lab report, personal hearing and BRPL Vs . Dev Kumar & Anr. CC No. 711/12 page 9 consumption pattern.
8). CW3 Sh. Sandeep Kumar testified that on 28.07.2011 at about 3.00 P.M, he alongwith inspection team comprising of Mr. Ajay SharmaAM, ShivjeetLineman, Dilipphotographer inspected the premises bearing No. 1, VillageNilothi, near Jaichand House,Pole No. NGLG626, Nangloi, New Delhi. They visited the subject premises and they were carrying a lab report. In the premises, a plastic daana factory was running. They downloaded data of the meter installed in the subject premises. They assessed the connected load of the subject premises. Thereafter, they prepared the reports i.e. Seizure Memo already Ex. CW2/E bearing his signature at pointB, Meter Details EX. CW3/1 bearing his signature at point B, Load Report already Ex. CW2/D bearing his signature at point B. Thereafter, they offered the reports, however, they refused to accept the same.
9). CW4 Sh. Dalip Kumar testified that o n 28.07.2011 at about 3.00 P.M., he carried out videography at House No. 1, Village BRPL Vs . Dev Kumar & Anr. CC No. 711/12 page 10 Nilothi, Near Jaichand House, Pole No. NGLG626, Nangloi, New Delhi. He went alongwith team leaderAjay Sharma, Sandeep Kumar DET, ShivjeetLineman. On the instruction of Sh. Ajay Sharma, he carried out the videography of the premises in question. Videography was deposited by him in Arora Photo Studio.
He also testified that he could identify the videography if shown to him.
At that stage, a CD found kept in envelope bearing already Ex. CW2/F was taken out and and same was displayed on the laptop and same was Ex. CW4/1.
Despite efforts, only caption with blurred picture of meter was appearing in the beginning in the CD and for remaining contents, it was showing error.
10). CW5 Sh. Gaurav Bajaj testified that on 20.06.2011, he received a bag bearing Serial No. 442087 in sealed condition with seal bearing serial No. 23635 consisting a meter bearing BRPL Vs . Dev Kumar & Anr. CC No. 711/12 page 11 serial No. 27108787 as per letter inside the bag. He took out the meter, took the required photographs of the bag number and seal number. After breaking the seal of the bag, he took out the meter from the bag and took the required photographs. Meter number could not be identified, LCD and LED of the meter were not working, accuracy of the meter could not be done due to burnt condition. Data could not be downloaded. On the basis of above observation, he prepared the lab report already Ex. CW2/B (colly) under the supervision of Sh. Bimal Mondal-Asst. Manager and same bore signature of Sh. Bimal Mondal at point-A. As per observation, meter was found abnormal burnt, so he came to the conclusion that meter was found abnormal burnt. After testing the meter, he sealed the meter in the bag with new seal bearing serial No. BRPL PS 86151 and submitted for further necessary action. Meter number written on the MMG letter was 27104242 which was wrongly stated as 27108787 in his above-statement.
He also stated that he could identify the meter. At that stage, a plastic bag (plastic katta) without seal BRPL Vs . Dev Kumar & Anr. CC No. 711/12 page 12 was produced and same was opened and found containing green colour bag sealed with yellow colour plastic seal bearing No. 86151 BRPL PS. Same was also opened and found containing a burnt meter and one plastic seal bearing No. 23635 BRPL PS. After seeing the plastic seal which was found in green colour bag, the witness stated that it was the same seal which was present on the bag when he received the same for testing. After seeing the abovesaid burnt meter, the witness stated that it was a three phase meter which was tested by him and found abnormal burnt.
11). Thereafter, statement of both accused U/s 313 Cr.PC had been recorded separately, in which they denied the allegations levelled against them.
Accused no. 1Dev Kumar stated that contents of the CD are incorrect and denied. He also stated that the witnesses belonged to complainant company and had deposed on the instruction of the complainant company. He also stated that he had been falsely implicated and was innocent. BRPL Vs . Dev Kumar & Anr. CC No. 711/12 page 13
AccusedParvesh Shokeen stated that on 08.03.2011, he was not present at the spot and he was not aware about the alleged proceedings of MMG Department. The premises was in occupation of his tenantDev Kumar. The meter was not abnormally burnt. He also stated that the electricity connection was installed in his name. He also stated that he did not know about replacement of meter. He did not know about the lab test as no notice of lab test was given to him. No notice of personal hearing was served upon him and he did not know anything about the personal hearing. The speaking order was incorrect. He also stated that the CD was incorrect. He also stated that he did not know regarding testing of the meter in the lab as he was not called for lab test. The meter produced in the Court was not showing his meter number and he denied that the meter was abnormal burnt. He also stated that witnesses were false witnesses and wanted to help the BRPL Vs . Dev Kumar & Anr. CC No. 711/12 page 14 complainant company and he was innocent and he had no role in the entire case. The premises was in occupation of Sh. Dev Kumar and he was using the same at the time of inspection.
Both accused persons chose not to lead DE.
12). I have heard the arguments of ld. counsels for the parties, perused the material available on record as well as the relevant provisions.
In this present case, as per the case of the complainant company, present case has been filed by Sh. Binay Kumarauthorized representative/officer who was duly authorized vide General Power of Attorney dated 23.10.2006.
It is very very relevant to pen down here that no one has been examined to prove the complaint in post summoning evidence. Had he/she examined, the accused persons would have got an opportunity to crossexamine him/her.
The provision of Regulation 52 (ix) of Delhi BRPL Vs . Dev Kumar & Anr. CC No. 711/12 page 15 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 CW01 Ajay Sharma testified that they prepared the inspection report, load report and seizure memo which were already exhibited as Ex. CW2/C (colly), Ex. CW2/D (colly), Ex. CW2/E bearing his signature at pointA on each page and the user/accused Dev Kumar was present at site.
It is very very relevant to pen down here that during crossexamination, CW01 stated that none of the abovesaid BRPL Vs . Dev Kumar & Anr. CC No. 711/12 page 16 documents bore the signature of Dev Kumar, however, there was refusal mentioned in the Report. He also stated that Dev Kumar has left the premises when they prepared the inspection report.
Here, it is said that from his crossexamination, it is clear that the alleged reports don't bear the signature of Dev Kumar who was allegedly found present at site.
It is very very relevant to pen down here that CW01 Sh. Ajay Sharma did not testify during his examinationinchief regarding offer, refusal and pasting of the alleged inspection report.
It is worthwhile to mention here that CW03Sh. Sandeep Kumar testified that they prepared the reports i.e. Seizure Memo already Ex. CW2/E bore his signature at pointB, Meter Details Ex. CW3/1 bearing his signature at pointB, Load Report already Ex. CW2/D bore his signature at pointB. Thereafter, they offered the reports, however, they refused to BRPL Vs . Dev Kumar & Anr. CC No. 711/12 page 17 accept the same.
It is to note here that CW03Sandeep Kumar did not testify regarding presence of accused persons and it is not clear from his testimony that who were they to whom they allegedly offered the alleged report and who were they who allegedly refused to accept the alleged reports. He also did not testify regarding pasting of alleged inspection report at the subject premises but only during crossexamination, he stated that the reports were offered for signature to Mr. Dev Kumar but he refused to sign and received the same. He did not remember if the reports were pasted by them in the subject premise and he had not sent the reports to the consumer by registered post. He had not pasted the reports in the subject premises.
It is to note here that perusal of alleged Inspection Report Ex. CW2/C (colly) shows that nothing has been mentioned regarding offer, refusal and pasting of any alleged report. BRPL Vs . Dev Kumar & Anr. CC No. 711/12 page 18
Here, view of the Court is that just to fill up the lacunae, CW03Sh. Sandeep Kumar during his testimony testified that they offered the reports however, they refused to accept the same and during crossexamination stated that reports were offered for signature to Mr. Dev Kumar but he refused to sign and receive the same. Had it so, it would have been mentioned in the inspection report Ex. CW2/1 (colly).
It is also to note here that no document has been proved on record that the accused persons had been served with the inspection report through registered post.
Thus, complainant company failed to prove that alleged inspection report was ever served upon the accused persons. Therefore, the alleged inspection team has not complied with the abovesaid mandatory regulation which certainly goes against the complainant company.
It is to note here that as per the complaint, the subject BRPL Vs . Dev Kumar & Anr. CC No. 711/12 page 19 meter was seized in the bag bearing bag No. 442087 and bag seal No. 23635 and was then sent to the laboratory, in sealed condition for further analysis under the intimation to consumer that the subject meter would be desealed on 23.03.2011 at 10.30 AM/2.00 P.M. Here, it is said that no document has been proved on record that accused persons were ever intimated regarding de sealing of subject meter as alleged.
In light of above, the complainant company failed to prove that accused accused persons were ever intimated regarding desealing of subject meter as alleged which certainly goes against the case of the complainant company.
In the judgment titled as Col. R.K.Nayyar vs. BSES Rajdhani Power Ltd. 140 (2007) DLT 257, wherein it has been observed as under : BRPL Vs . Dev Kumar & Anr. CC No. 711/12 page 20 "This court is of the view that an inference of fraudulent abstraction of energy must be based on the some conclusive evidence that the user has tampered with the meter in a manner that has enabled such user to either slow down the meter or make it record lesser units of consumption. There must be a link established between the physical evidence of tampering noticed on inspection and the consumer. An inference of FAE should not be permitted to be drawn on the mere fact that meter had been found with broken seal. An electricity meter is admittedly not kept enclosed in a tamper proof environment under the lock and key, with one key retained by the consumer and the other by the supplier of the electricity. If a meter is kept in a location that permits any person intending to do mischief to have easy assess to the meter, than to fasten the charge of FAE on the consumer in the event of meter being found tampered, is not being reasonable or even realistic. Something more would have to be demonstrated to infer an intention by the consumer to "fraudulently" abstract electricity. In this context it is necessary to emphasis that the analysis of consumption pattern cannot constitute substantive proof of DAE in the absence of tangible physical evidence of DAE in the manner explained above. In other words, the analysis of consumption pattern can only corroborate what is found on physical inspection which can indicate whether the consumer has herself or himself employed a device or a method to dishonestly abstract electricity. It will not be opened to the respondent, in the absence of any tangible evidence of DAE, to proceed on the basis of consumption pattern to infer DAE.
It is to note here that as per the testimony of CW05 Gaurav Bajaj, he tested the subject meter and found the meter terminal abnormal burnt and because of the meter condition, the BRPL Vs . Dev Kumar & Anr. CC No. 711/12 page 21 accuracy of the meter could not be done and meter data could not be downloaded. He also testified that meter number could not be identified, LCD and LED of the meter were not working. He took the required photographs. On the basis of aboveobservation, he prepared the lab report already Ex. CW2/B (colly) under the supervision of Sh. Bimal Mondal. As per observation, meter was found abnormal burnt, so he came to the conclusion that meter was found abnormal burnt.
It is relevant to pen down here that during cross examination, CW05 stated that whenever a meter was burnt, the physical condition of the meter showed that the meter to be burnt and in this case, the meter was found to be burnt. He also stated that he did not know the reason of burning of that meter. He also admitted that he had not concluded the meter to be tampered in his report or otherwise.
It is relevant to pen down here that PW05 did not rely BRPL Vs . Dev Kumar & Anr. CC No. 711/12 page 22 upon any photograph. Here, it is said that mere say is not sufficient that photographs were taken at the time of alleged testing of the subject meter.
In light of above, here it is said that the CW05 who allegedly dealt with the subject meter himself not sure regarding the reason for burning of the subject meter and also admitted that he had not concluded the meter to be tampered in his report or otherwise, nothing has been proved on record that the subject meter was deliberately destroyed as alleged.
Hence, the complainant company has failed to prove that the subject meter was deliberately destroyed as alleged.
It is also to note here that as per the testimony of CW01, load of the premises was captured as 52.2 KW which was being used for industrial purpose. During crossexamination, he stated that he had not recorded the MDI of the meter installed in the premises at the time of inspection. The metering data was downloaded. The meter data had not been placed on the record of BRPL Vs . Dev Kumar & Anr. CC No. 711/12 page 23 this Court. He admitted that the metering data would depict the load in use in the premises and voluntarily said that it would depict for a particular moment. He also admitted that the load in use for every particular moment was stored in the meter data of the meter.
As per the testimony of CW03, they downloaded data of the meter installed in the subject premises and thereafter they prepared the load reports already Ex. CW2/D. During crossexamination, CW03 stated that he had not checked the meter No. 27104242. He did not know what was the load installed against the meter No. 27104242. He had not noted the MDI of the meter in the subject premises at the time of inspection. He admitted that if the MDI of the meter would have been recorded at the time of inspection, it would have indicated the load of the premises.
In light of above, here it is clear that neither CW1 nor CW03 had noted the MDI of the meter at the time of inspection. Which if would have been recorded at the time of inspection, it would have indicated the load of the premises. Further, it is also admitted that the metering data would BRPL Vs . Dev Kumar & Anr. CC No. 711/12 page 24 depict the load in use in the premises. So inaction on the part of CW1 and CW3 creates doubt which certainly goes against the case of the complainant company.
As per testimony of CW02Sh. Sandipan Adhikari, he had passed speaking order already Ex. CW2/1 which bore his signature at pointA and same is based on inspection report, lab report and consumption pattern.
Perusal of alleged speaking order already Ex. CW2/1, it is found written, "the theft of electricity is established under the Delhi Electricity Supply Code and Performance Standards Regulations, 2007 and Section 135 & 138 of the Electricity Act, 2003 as amended in 2007".
It is very very relevant to pen down here that during crossexamination of CW02, a question was asked to CW02, "whether laboratory had given any reason for arriving at the conclusion that meter in question was abnormally burnt", he answered that no reason had been given in the lab report. He also stated that he had not tried to find out the reason for burning BRPL Vs . Dev Kumar & Anr. CC No. 711/12 page 25 of the meter before passing of the assessment order and voluntarily said that he passed the assessment order on the basis of lab report. He also stated that meter might also burnt due to sparking, loose connection or excess load. He also stated that he could not admit or deny suggestion that the subject meter got burnt in normal course due to sparking or loose connection. He also stated that he had not compared the consumption pattern of preinspection period and postinspection period.
Here, view of the Court is that the alleged laboratory had not given any reason for burning the subject meter and as per crossexamination of CW02, he had not compared the consumption pattern of preinspection period and post inspection period, then as to how the CW02 came to the conclusion that the theft of electricity is established. Here, it is said that alleged speaking order is based only on alleged beforesaid documents. So abovesaid facts certainly are against the case of the complainant company.
BRPL Vs . Dev Kumar & Anr. CC No. 711/12 page 26
Further, 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.
Now coming to the fact and circumstances of the present case. It is worthwhile to mention here that as per CW02, Dev Kumar consumer attended the personal hearing on 25.08.2011 and he had passed Speaking Order already Ex. CW2/1.
Perusal of alleged speaking order Ex. CW2/1 it is BRPL Vs . Dev Kumar & Anr. CC No. 711/12 page 27 found that date of passing the alleged speaking order is 02.07.2012.
Here, view of the Court is that the alleged speaking order dated 02.07.2012 Ex. CW2/I should have passed within three days from the date of personal hearing i.e. 25.08.2011 but same was passed on 02.07.2012 i.e. after the considerable gap of more than 10 months. No reason has been assigned for the delay in passing the speaking order. Hence, the complainant company has not complied with the aforesaid regulation.
It is to note here that CW01Sh. Ajay Sharma testified that during the inspection, videography was done by photographer Sh. Dalip from M/s Arora Photo Studio, CD of which was Ex. CW2/F. As per the testimony of CW3Sandeep Kumar, Dilip Kumar photographer also accompanied with the inspection team at the time of inspection but he did not testify regarding any videography/photography.
BRPL Vs . Dev Kumar & Anr. CC No. 711/12 page 28
As per the testimony of CW04Sh. Dalip Kumar, o n the instruction of Sh. Ajay Sharma, he carried out the videography of the premises in question. Videography was deposited by him in Arora Photo Studio.
He also testified that he could identify the videography if shown to him.
At that stage, a CD found kept in envelope bearing already Ex. CW2/F was taken out and and same was displayed on the laptop and same was Ex. CW4/1.
Despite efforts, only caption with blurred picture of meter was appearing in the beginning in the CD and for remaining contents, it was showing error.
It is to note here here that 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 CD of videography Ex. CW4/1. Thus, the complainant company has failed to prove the alleged CD of BRPL Vs . Dev Kumar & Anr. CC No. 711/12 page 29 videography Ex. CW4/1 in the present case in accordance with law. Therefore, the alleged CD Ex. CW4/1 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.
CW01Sh. Ajay Sharma did not testify regarding joining of any public person in the alleged inspection proceedings during his examination in chief but during crossexamination, he stated that they requested 34 public persons to join the inspection at the premises but they refused and the said persons also did not disclose their names. He also stated that Inspection Report Ex. CW2/C (colly) was not signed by any public persons.
It is also to note here that CW03Sh. Sandeep Kumar also did not testify regarding joining of any public witness in the alleged inspection proceedings.
BRPL Vs . Dev Kumar & Anr. CC No. 711/12 page 30
It is also relevant to pen down here that perusal of alleged inspection report Ex.CW2/C (colly) also, it is found that nothing has been mentioned that any efforts were made by the alleged inspection team to join the public persons in the alleged inspection proceedings. Here, view of the Court is that CW01Sh. Ajay Sharma during his crossexamination just to fill up the lacunae stated that they requested 34 public persons to join the inspection at the premises but they refused and the said persons also did not disclose their names. Had it so, it would have been mentioned in the inspection report Ex. CW2/C (colly). Therefore, nonjoining of the public persons during alleged inspection also goes against the complainant company.
In view of abovediscussion, the complainant company has failed to prove the offence alleged against both accused persons beyond reasonable doubt in the present case. Thus, the accused persons namely Dev Kumar and Parvesh Shokeen are entitled for BRPL Vs . Dev Kumar & Anr. CC No. 711/12 page 31 acquittal. Accordingly, accused persons namely Dev Kumar and Parvesh Shokeen are acquitted for the offence punishable Under Section 135/138/150 of the Electricity Act, 2003. Bail bonds of both accused persons stand canceled and their respective 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 complainant company on the basis of alleged inspection dated 28.07.2011 be released by the complainant company after expiry of the period of appeal. It is to note here that bail bonds U/s 437 (A) Cr.P.C. of both accused persons have been furnished and accepted. File be consigned to record room after due compliance . Digitally signed by REKHA
REKHA Date: 2019.10.25 16:27:25 +0530 Announced in open court (Rekha ) on day of 25th October, 2019 ASJ(Special Court) Electricity/Central Tis Hazari Courts, Delhi BRPL Vs . Dev Kumar & Anr. CC No. 711/12 page 32