Delhi District Court
Through Its Sh. Binay Kumar vs . on 30 October, 2018
IN THE COURT OF MS REKHA,
ADDITIONAL SESSIONS JUDGE, (SPECIAL COURT)
ELECTRICITY, CENTRAL DISTRICT, TIS HAZARI COURT,
DELHI
CC No. 793/13
New Case No. 327227/16
U/s 135, 138 and 150 of Electricity Act, 2003
BSES Rajdhani Power Ltd.,
A company duly incorporated under the Companies Act, 1956
Having its Registered office at:
BSES Bhawan, Nehru Place,
New Delhi110019
Also at:
Corporate, Legal and Enforcement Cell at,
Andrw Ganj, Next to Andrew Ganj Market,
New Delhi110049
Through its Sh. Binay Kumar
(Authorized Officer) ....................Complainant
Vs.
1) Dinesh (User)
2) Sh. Sanjay Jain (User)
3. Sh. Ram Kumar Jain (R/C)
B61, Naresh Park Extension, Nangloi,
New Delhi. ..............Accused persons
BRPL Vs . Dinesh & Ors. CC No. 793/13 page 1
Date of Institution : 02.08.2013
Date of Judgment : 30.10.2018
Final Order : All accused 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 and 150 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 the complaint is filed
by the complainant company acting through the Authorized Officer
Sh. Binay Kumar who was duly authorized vide letter dated 23 rd
October, 2006. It is also stated that as per the direction of D.G.M.
Enforcement, an inspection was conducted on 08.12.2012 at the
BRPL Vs . Dinesh & Ors. CC No. 793/13 page 2
premises bearing No.B61, Naresh Park Extension, Nangloi, New
Delhi (hereinafter referred as subject premises) by the joint
inspection team of the complainant company comprising of Sh.
Anil KumarAsst. ManagerEnforcement, Sh. SubhashLineman,
Sh. KunduDET and Sh. Babloophotographer from Arora Photo
Studio. It is also stated that Dinesh Jain and Sanjay Jain, as
stated, were the user of electricity while Ram Kumar Jain was the
registered consumer of electricity. One three phase electronic
meter No. 27074971 (as per Bill) (hereinafter referred as subject
meter) vide K No. 2630 0D061316 (hereinafter referred as subject
connection) was found installed and load of 18.416 KW was found
connected against the sanctioned load of 12.00 KW. At the time of
inspection the subject meter was found in totally burnt condition
and as such burnt parts/ash etc. of the meter were seized at site
vide Seizure Memo dated 08.12.2012 and sealed in the bag in the
presence of the consumer and supply to the premises was
restored through new meter and subject meter was sent to NABL
BRPL Vs . Dinesh & Ors. CC No. 793/13 page 3
accredited meter testing laboratory for further testing/analysis of
the meter. Necessary videography of the burnt meter as well as
connected load was also done by the team members with the help
of Digital camera at site. It is also stated that inspection team
prepared Inspection report containing meter/load detail as well as
seizure memo thereby seizing the subject meter at site. The meter
was tested in laboratory and as per Energy Meter Test Report No.
BRPL/12/27698 dated 20.12.2012, plastic and hologram seals
found burnt, meter found abnormally burnt, Meter LCD and LED
found not OK and in conclusion, the laboratory declared that the
meter found abnormally burnt. Consequently, show cause notice
dated 07.01.2013 was issued to the consumer to file reply by
22.01.2012and to attend the personal hearing on 29.01.2013 and Ram Kumar JainRC and Sanjay JainUser attended the personal hearing on 29.01.2013 and made their submissions and taking into all facts and circumstances of the case the Assessing Officer passed the BRPL Vs . Dinesh & Ors. CC No. 793/13 page 4 Speaking Order dated 12.02.2013 and it was concluded that there is case of DAE and on the basis of speaking order dated 12.02.2013, a bill of Rs. 4,87,781/ was raised as per the Provisions of Tariff and DERC Regulation and was sent to the accused but accused did not pay the same. Hence, the present complaint case.
3). The complainant company led the presummoning evidence. Vide order dt. 18.12.2013, accused persons were summoned to face the trial for the offence U/s 135, 138 R/w Section 150 of the Electricity Act, 2003.
It is also to note here that vide order dated 03.05.2016 notice U/s 251 Cr.P.C., had been served upon all the accused persons for the offence punishable U/s 135/138/150 of the Electricity Act, 2003 to which accused persons pleaded not guilty and claimed trial.
BRPL Vs . Dinesh & Ors. CC No. 793/13 page 5
4). In this case, the complainant company has examined five witnesses, so as to prove its case namely PW1Sh. Anil KumarManager, PW02Sh. Subhash ChanderLineman, PW03 Sh.Nikhil KumarTesting Engineer, PW04Sh. Vinod Kumar Manager and PW05Sh. Rajesh AroraDGM.
5). PW1 Sh. Anil KumarManager testified that on 08.12.2012, he visited the premises along with Sh. Subhash (lineman) and Sh. Kundan (DET), Sh. Bablu, photographer (from M/s Arora Photo Studio) and MMG team on direction of DGM (enforcement) and visited the premises bearing no. B61, Naresh Park Extn. Nangloi. During the inspection of the premises, they found the three phase meter had been totally burnt (meter No. 27074971 as per bill). They seized the burnt meter in a BRPL bag and sealed for sending it to laboratory for further analysis. They assessed the connected load of the said premises approx. 18.416 kw for nondomestic purpose. The MMG team replaced old meter BRPL Vs . Dinesh & Ors. CC No. 793/13 page 6 and installed new meter. The videographer Bablu from M/s Arora Studio conducted videography at the site. The CD containing videography was already Ex. CW2/8. They prepared inspection report, load report and seizure memo at the site which bear his signatures at point A. They offered the said documents to the accused but the accused refused to receive and sign the same.
He also testified that he could identify the case property if shown to him. At that stage, one gunny bag with no seal was produced and same was opened and out of which one small gunny bag with the yellow colour BRPL seal no. 0214450 was taken out and same was also opened and out of which one burnt meter was taken out. After seeing the same, witness identified the burnt meter as same was found in burnt condition at the time of inspection and same had been seized vide seizure memo then exhibited as Ex.PW1/ A. The witness identified the burnt meter vide Ex.P1.
BRPL Vs . Dinesh & Ors. CC No. 793/13 page 7
6). PW2Sh. Subhash ChanderLineman testified that as per the direction of D.G.M.Enforcement, an inspection was conducted on 08.12.2012 at the premises bearing No.B61, Naresh Park Extension, Nangloi, New Delhi (hereinafter referred as subject premises) by the joint inspection team of the complainant company comprising of Sh. Anil KumarAsst. Manager Enforcemenmt, Sh. SubhashLineman, Sh. KunduDET and Sh. Babloophotographer from Arora Photo Studio. It is also stated that Dinesh Jain and Sanjay Jain, as stated, were the user of electricity while Ram Kumar Jain was the RC and Subject meter was found installed and load of 18.416 KW was found connected against the sanctioned load of 12.00 KW. At the time of inspection the subject meter was found in totally burnt condition and as such burnt parts/ash etc. of the meter were seized at site vide Seizure Memo dated 08.12.2012 and sealed in the bag in the presence of the consumer and supply to the premises was restored through new meter and subject meter was sent to NABL accredited meter BRPL Vs . Dinesh & Ors. CC No. 793/13 page 8 testing laboratory for further testing/analysis of the meter. Mr. Babloovideographer from Arora Photo Studio conducted the videography with the help of Digital Camera at site and CD containing the videography was already exhibited as Ex. CW2/8. Inspection team prepared Inspection report containing meter/load detail as well as seizure memo thereby seizing the subject meter at site and the said reports were already exhibited as Ex. CW2/1 and Ex. CW2/2 respectively.
7). PW3Sh. Nikhil KumarTesting Engineer testified that on 20.12.2012, he had received a three phase meter in gunny bag bearing No. 513422 with seal yellow colour bearing No. 0231542 from store. He desealed the seal in the presence of Mustafa Barbhaiwala on 20.12.2012. He tested the meter in the presence of Mustafa Barbhaiwala on 20.12.2012 and meter was found completely burnt. Accuracy check of the meter could not be done due to meter was in totally burnt condition. Data of the meter BRPL Vs . Dinesh & Ors. CC No. 793/13 page 9 could not be downloaded, the meter being in burnt condition. Meter number was also could not be identified, the same being in burnt condition. After seeing the meter, he as well as Mr. Mustafa Barbhaiwala came to the conclusion that meter found abnormally burnt. After testing the meter, the same was resealed in gunny bag bearing No. 513422 with yellow colour seal No. 0214450 and sent to the concerned department. He had also prepared lab report dated 20.12.2012 which bear his signature at point A and lab report was already exhibited as Ex. CW2/3. It also bear the signature of Sh. Mushtafa Barbhaiwala at pointB. He had been working with Sh. Mustafa Barbhaiwala even as on date and had been seen him signing and writing and identify his signatures on Ex. CW2/3. The complete report Ex. CW2/3 had been prepared in his handwriting. He had also clicked the photograph at the time of lab test and the photographs taken by him of the burnt meter and photocopy of the same were PW3/X1 (colly).
At that stage, a white plastic bag with broken seal was BRPL Vs . Dinesh & Ors. CC No. 793/13 page 10 produced and same was opened and found containing one grey colour small bag bearing No. 513422 without seal and same was also opened and found containing some parts and after seeing the same, witness stated that these parts were of burnt meter. Witness also stated that there were two seals bearing No. 0214450 BRPL, PS and another 0231542 BRPL, PS. Witness also stated that it was the same meter which was tested by him in this present case and subject meter was received in a bag which was sealed with the seal of 0231542 BRPL, PS and after it was sealed with the seal of 0214450 BRPL, PS.
08). PW4Sh. Vinod KumarManager testified that the matter pertaining inspection dated 08.12.2012 pertaining to the meter in question was referred to him for assessment and he had issued show cause notice dated 07.01.2013, computer copy already Ex. CW2/4 to the accused and personal hearing was fixed for 29.01.2013. On 29.01.2013, Sh. Ram Kumar Jain attended the BRPL Vs . Dinesh & Ors. CC No. 793/13 page 11 personal hearing and a notesheet dated 29.01.2013 was also prepared by him and the same was already exhibited as Ex. CW2/5 which bears his signature at point A and signature of the consumer at point B. Thereafter, taking into consideration all the documents and personal hearing given to the consumer, he passed the speaking order dated 12.02.2013 which was already Ex. CW2/6 which bears his signature at pointA.
09). PW5Sh. Rajesh AroraDGM testified that he was AR of the complainant company and photocopy of general power of attorney executed in his favor was duly signed by him on each and every page and the same was Ex.PW5/1. The present complaint had been filed by Sh. Binay Kumar, the then AR of the complainant company and the photocopy of authority letter in favour of Sh. Binay Kumar was already Ex.CW1/2. He identified his signature at point A on page 5 of the complaint as I had seen him signing while working with him.
BRPL Vs . Dinesh & Ors. CC No. 793/13 page 12
10). Statement U/s 313 Cr.P.C, of all accused persons had been recorded in which they had denied the allegations against them and accused Dinesh Jain admitted that inspection was carried out but the load assessment was incorrect in the inspection report as he had never used load beyond the sanctioned load at site. He also stated that he did not know whether any videography was done or not and he was only handed over the copy of change of meter and not the inspection reports. He also stated that the complainant company had not produced the meter of his site in the Court and meter which was produced in the Court was not his meter as his meter was totally burnt down and was left with ashes and some metal parts. He was the only user of the electricity. Sh. Ram Kumar Jain was his father and he was only registered consumer not the actual user and the meter was burnt due to voltage fluctuation in the area and in the past 2/3 months, 3 to 4 meters had burnt in the same lane of his area. He did not receive any notice of lab testing. He was never handed over the copy of inspection report containing meter/load details as BRPL Vs . Dinesh & Ors. CC No. 793/13 page 13 well as seizure memo at site. Mr. Mustafa had failed to establish any case against him as he had not given any specific reason or method through which he could steal electricity. He was innocent and meter was got burnt on its own at the site. The test of meter was not at possible. Mr. Mustafa was the employee of the BRPL and held bias in favour of the complainant company. He was not present at the time of testing of the meter, so he did not know anything about it. The meter at site had not been produced at the Court and complainant company had produced some other meter. His meter was totally burnt and was left with ashes. He had never tampered with his meter. He did not know regarding the personal hearing and his father could only answer. He was innocent and he had not committed any alleged offence of electricity theft/DAE and he had been falsely implicated in the present case.
AccusedSanjay Kumar Jain stated that he was not a party to this case. Neither he was registered consumer nor the actual user. He had been falsely implicated in this case and he BRPL Vs . Dinesh & Ors. CC No. 793/13 page 14 had no personal knowledge of the present case. He had been harassed unnecessary at the hands of the electricity department. His brother namely Dinesh Jain was running the godown and he had nothing to do with it. Nothing in evidence had come up against him to implicate him as an accused in this case. He was innocent and has nothing to do with this case. He did not know whether any videography was done or not. He was innocent and he had not committed any alleged offence of electricity theft/DAE and he had been falsely implicated in the present case.
AccusedRam Kumar Jain stated that he had been falsely implicated in this case as he was mere registered consumer and had given the godown for running to his son namely Dinesh Jain who was looking after the godown and had informed that meter had got burnt due to voltage fluctuation at site and the company officials had come to change the meter and he also attended a personal hearing for which notice was in his name and explained the incident but the officials of the complainant BRPL Vs . Dinesh & Ors. CC No. 793/13 page 15 company were persistent upon recovering the penalty bill from him on one pretext or other. He was not the party to this case and has been wrongly made as an accused. He was innocent and he had not committed any alleged offence of electricity theft/DAE and he had been falsely implicated in the present case.
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 BRPL Vs . Dinesh & Ors. CC No. 793/13 page 16 Post.
In the present case, PW01Sh. Anil Kumar and PW 02Sh.Subhash Chander are star material witnesses as they were alleged members of the alleged inspection team. It is to note here that as per the testimony of PW01Anil Kumar, they prepared the inspection report, load report and seizure memo at the site and they offered the said report to the accused but the accused refused to receive and sign the same. Here, it is said that it has not testified that to whom, he allegedly offered the abovesaid documents and by whom there was alleged refusal. It is also to note here that PW01 did not testify regarding pasting of the inspection document on inspected premises and sending the same through registered post. It is also relevant to pen down here that PW02 did not testify regarding offering of inspection documents and refusal by accused.
It is relevant to jot down here that during the statement BRPL Vs . Dinesh & Ors. CC No. 793/13 page 17 of accused U/s 313 Cr.P.C., accusedDinesh Jain stated that he was only handed over the copy of change of meter and not the inspection reports and also stated that he was he was never handed over the Inspection Report containing meter/load details as well a seizure memo Ex. CW2/1 and CW2/2 respectively. Both accused namely Sanjay Kumar Jain and Ram Kumar Jain stated that offering of documents were not applicable upon them.
It will not be out of place to mention here that perusal of alleged inspection report i.e. Ex. CW2/A (colly), it is found that nowhere it has been mentioned that the inspection reports were offered and same were refused and thereafter, the same were pasted.
Here, it is said that testimony of PW01 is after thought that they offered the said report to the accused but the accused refused to receive and sign the same. Had it so, it would have mentioned in Inspection Report Ex. CW2/1.
It is to note here that no document has been proved on BRPL Vs . Dinesh & Ors. CC No. 793/13 page 18 record that the accused persons had been served the alleged inspection report through registered post.
Hence, here view of the Court is that the complainant company failed to prove that the alleged abovesaid documents were ever served upon the accused persons.
In light of abovediscussion, view of the Court is that 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 reports were served upon the accused persons.
It is to note here that as per the testimony of PW01, during the inspection of the premises, they found the three phase meter had been totally burnt (meter No. 27074971 as per bill), as per testimony of PW02, at the time of inspection, the meter was found in totally burnt condition and as such burnt parts/ash etc of the meter was seized at site. As per the testimony of PW03, accuracy check of the meter could not be done due to meter was BRPL Vs . Dinesh & Ors. CC No. 793/13 page 19 in totally burnt condition. During the statement of accused U/s 313 Cr.P.C., accusedDinesh stated that the meter seized at site had not been produced at the Court and complainant company had produced some other meter. His meter was totally burnt and was left with ashes and some metal parts.
It is also relevant to pen down here that when a gunny bag which allegedly containing case property was produced before the Court and shown to the PW1, it was without seal. Here, view of the Court is that tampering with subject meter cannot be ruled out. Further, PW01 identified the burnt meter as the same which was found in burnt condition at the time of inspection. Here, view of the Court is that mere say is not sufficient that meter produced before the Court was the same meter which was allegedly seized at the site.
It is very very relevant to jot down here that no case property was shown to PW02.
Furthermore, when the alleged case property was BRPL Vs . Dinesh & Ors. CC No. 793/13 page 20 shown to PW03, who as per his testimony allegedly tested the meter, the plastic bag in which it was brought was with broken seal. It is to note here that as per the testimony of PW03, he had also clicked the photograph at the time of lab test and the photographs taken by him of the burnt meter and photocopy of the same were PW3/X1 (colly). It is very relevant to pen down here that no requisite certificate U/s 65B of the Indian Evidence Act has been relied upon, so as to prove the photographs PW3/X1 (colly). Thus, the complainant company has failed to prove the alleged photographs PW3/X1. Therefore, the photographs PW3/X1 (Colly) is of no help for the case of the complainant company. More so, it is also said that mere say of PW03 that the alleged meter which was produced before the Court was the same meter which was allegedly tested by him is not sufficient. Further, view of the Court is that tampering with subject meter cannot be ruled out as when alleged meter was shown to PW3, it was brought in a bag of which seal was broken.
The provision of Regulation 53 (ii) of Delhi Electricity Supply Code and Performance Standards Regulation, 2007, is reproduced as under: BRPL Vs . Dinesh & Ors. CC No. 793/13 page 21
(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 to note here that as per the testimony of PW04 Sh. Vinod Kumar, he had issued show cause notice dated 07.01.2013 and on 29.01.2013, Sh. Ram Kumar Jain attended the personal hearing. Thereafter, taking into consideration all the documents and submission made by the consumer during personal hearing, he passed the speaking order dated 12.02.2013 which was already Ex. CW2/6.
Here, view of the Court is that the alleged speaking order dated 12.02.2013 Ex. CW2/6 should have been passed within three days from the date of personal hearing i.e. 29.01.2013 but same was passed on 12.02.2013 i.e. after the gap of 13 days. No reason assigned for the delay in passing the speaking order. BRPL Vs . Dinesh & Ors. CC No. 793/13 page 22 Hence, the complainant company has not complied with the aforesaid regulation.
It is also to note here that as per the testimony of PW01Sh. Anil Kumar, they seized the burnt meter in BRPL bag and sealed for sending it to the laboratory for further analysis.
Here, it is said that PW01 only testified that they sealed the subject meter so that it could be sent in lab for further analysis. He did not testify that the alleged subject meter was sent to lab for testing.
As per the testimony of PW02, subject meter was sent to the NABL accredited meter testing laboratory for further testing/analysis of the meter. Here, it is note down that PW01 and PW02 did not testify regarding intimation to the accused persons to witness the alleged testing of subject meter in the lab.
During statement of accused U/s 313 Cr.P.C., BRPL Vs . Dinesh & Ors. CC No. 793/13 page 23 accusedDinesh Jain stated that he did not receive any notice of lab testing.
It is also to note here that no document has been proved on record that the accused persons had been ever intimated to witness the testing of alleged subject meter in laboratory.
Here, it is said that complainant company failed to prove that accused persons were ever intimated to witness the testing of alleged subject meter in the laboratory.
It is also relevant to pen down here that as per the testimony of PW01 and PW02, VideographerBablu from M/s Arora Studio conducted the videography at site and CD containing videography already EX. CW2/8.
It is also to note here that no alleged videographer namely Bablu who had allegedly did the videography has been examined by the complainant company in this case.
BRPL Vs . Dinesh & Ors. CC No. 793/13 page 24
Moreover, the complainant company has also not relied upon the requisite certificate U/s 65B of the Indian Evidence Act, so as to prove CD of the alleged videography Ex. CW2/8. Thus, the complainant company has failed to prove the videography in the present case in accordance with law. Therefore, the CD of alleged videography Ex. CW2/8 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. PW01 and PW02 did not testify regarding joining of any public witness. Further, in the inspection report Ex.CW2/1 also nothing has been mentioned that any efforts were made by the team to join the public persons in the inspection. Public person should have been joined in the inspection,. There is also nothing on record to suggest that there was non availability of public persons in the vicinity of the premises. Therefore, nonjoining of the public persons during BRPL Vs . Dinesh & Ors. CC No. 793/13 page 25 inspection also goes against the complainant company.
So far as PW05Rajesh Arora is concerned, he is formal witness and during the crossexamination he stated that he was not present at the time of inspection or at the time of meter testing.
In view of abovediscussion, the complainant company has failed to prove the offence alleged against all accused persons namely Dinesh Jain, Sanjay Jain and Ram Kumar Jain beyond reasonable doubt in the present case. Thus, the accused namely Dinesh Jain, Sanjay Jain and Ram Kumar Jain are entitled for acquittal. Accordingly, accused namely Dinesh Jain, Sanjay Jain and Ram Kumar Jain are acquitted for the offence punishable Under Section 135/138/150 of the Electricity Act, 2003. Bail bonds of the accused persons stand cancelled and their respective sureties are also discharged. Amount, if any, deposited by the accused persons as a condition for bail or in BRPL Vs . Dinesh & Ors. CC No. 793/13 page 26 pursuance to interim order of the court qua the theft assessment bill raised by the company on the basis of alleged inspection dated 08.12.2012 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 all accused persons have been furnished and accepted. File be consigned to record room after due compliance. Digitally signed by REKHA
REKHA Date: 2018.10.30
16:52:53 +0530
Announced in open court (Rekha )
on day of 30th October, 2018. ASJ(Special Court)Electricity, Tis Hazari Courts, Delhi BRPL Vs . Dinesh & Ors. CC No. 793/13 page 27