Delhi District Court
Bypl vs . Mohd. Salim & Anr. on 4 January, 2016
IN THE COURT OF SHRI LAL SINGH
ADDITIONAL SESSIONS JUDGE, SPECIAL COURT
(ELECTRICITY), TIS HAZARI COURT, DELHI
CC No.621/10
Unique case ID No: 02401R0289142010
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), Delhi - 110 092
Acting through Sh. Rajeev Ranjan
(Authorized Officer) ............ Complainant
Verses
Sh. Mohd. Salim (User)
(Near BSES Pole Bearing No.H813)
S.No.3300, Farhatullah Kucha
Pandit Lal Kuan,
Delhi-6 ............ Accused No.1
2. Mustakim (R.C.)
(Near BSES Pole Bearing No.H813)
S.No.3300, Farhatullah Kucha
Pandit Lal Kuan,
Delhi-6 ............. Accused No.2
(since expired)
Date of Institution : 09.07.2010
Reserved for Judgment : 19.12.2015
Date of Judgment : 04.01.2016
JUDGMENT
1). Brief facts of the case are that the complainant company CC No. 621/10 BYPL Vs. Mohd. Salim & Anr.
Page 1 of 12replaced the burnt meter bearing No.13922961 (old meter) which was installed at the premises of the accused persons. The nature of the meter suggest that there was a possibility of interference made by the accused with the said meter. Hence, meter bearing No.13922961 was seized vide bag seal No.252935 and the same was sent in the laboratory for testing. After testing the burnt meter bearing No.13922961 in the lab, it is observed vide lab report that the meter has caused the external interference/applied ESD/HF coil.
Thereafter, on the basis of lab report, on 09.02.2010 at 11:50 p.m., a raid/inspection was carried out at the property/premises in question i.e. premises bearing S. No. 3300, Farhatullah Kucha, Pandit Lal Kuan, Delhi-6, by the officials/inspection team of the complainant company for the purpose of assessing the connected load. The inspection team of the complainant company consisted of Shri S. K. Chanchal (Senior Manager), Shri Rounaq Singh (GET), Shri Vinod Kumar (L/M) and Shri Chob Singh (L/M). During the inspection in the aforesaid premises of the accused persons, the accused No.1 (user) was found present at the premises in question. A case of Dishonest Abstraction of Energy was already booked against accused persons. At the time of inspection one single phase electronic meter bearing No.14145671 was found installed at the premises. The present complaint case pertains to the previous meter bearing No.13922961 (old meter). The connected load was found to the tune of 2.858 KW/NX against the sanctioned load of 1.00 KW/NX. The inspection team seized the meter bearing No.13922961 (old meter) vide seizure memo. Accused did not allow to take photographs of the connected load, however, the inspection team took photograph of the meter (new meter) which CC No. 621/10 BYPL Vs. Mohd. Salim & Anr.
Page 2 of 12was in running condition and CD of the same was also prepared. The inspection team also prepared the connected load report, inspection report and other documents at the site.
2). Thereafter, show cause notice dated 02.03.2010 was also issued to accused persons and thereby they were asked to appear for personal hearing on 21.04.2010. However, accused did not attend the personal hearing. Thereafter, Assessing officer (Enf.) passed speaking order dated 10.05.2010. As such, accordingly the present complaint for the offence under section 135/138/150 read with section 154 (5) of the Electricity Act,2003 has been filed against the accused persons.
3). Complainant company led the pre summoning evidence. Thereafter, vide order dated 07.10.2010 the accused were summoned to face the trial for the offence alleged against them. As the accused No.2 was already expired, hence, vide order dated 22.02.2011 the proceedings against accused No.2 was dropped/abated. Therefore, vide order dated 22.02.2011, notice u/s 251 Cr.P.C. was framed against accused No.1 (Mohd. Salim) only, for the offence punishable u/s 135/138/151 of the Electricity Act, 2003, to which accused No.1 pleaded not guilty and claimed trial.
4). In the instant matter, complainant company has examined four witnesses in all, namely, PW-1 Sh. S.K.Chanchal (Sr. Manager), PW-2 Sh. Rajeev Ranjan (AR), PW-3 Sh. V . K. Gupta (Sr. Engineer) and PW-4 Sh. Prasenjit (Assistant Manager).
5). PW-1 Sh. S. K. Chanchal was the member of the CC No. 621/10 BYPL Vs. Mohd. Salim & Anr.
Page 3 of 12inspection team which inspected the premises in question on 09.02.2010 at about 11:15 a.m. As per PW1, the inspection was carried out on the basis of lab report dated 19.01.2010 vide Ex.CW- 2/A. During the course of the inspection accused was found indulged in dishonest abstraction of energy for commercial purpose i.e. job work on the lathe machine were found in running condition along with grinders and other accessories. PW-1 further deposed that as per the observation of the lab report meter data was found disturbed. After that inspection team had assessed the connected load which was found running to the tune of 2.858 KW/NX/DAE. PW-1 also stated that the photograph of the meter installed at the premises in question was taken vide Ex.CW-2/D and CD of the same was also prepared vide Ex. CW2/D1. Thereafter, the meter bearing No.13922961 (old meter) which was received form the lab along with the report was seized vide seizure memo Ex.CW-2/C. PW1 has also identified the electronic meter bearing No.13922961 vide Ex. P1.
In cross examination, PW1 admitted that the meter in question (old meter) was not installed at the site at the time of the inspection. However, he stated that the meter in question was received from the laboratory. PW1 also admitted that there is no document showing the receiving of the meter in question from the laboratory. PW-1 shown his ignorance as to when the meter in question was removed from the premises in question. PW1 in his cross also admitted that they visited the premises in question for taking the load used in the premises but meter in question was not removed by him on that day. PW-1 stated that he cannot identify the accused due to lapse of time.
6). PW-2 Sh. Rajeev Ranjan is a formal witness, who has CC No. 621/10 BYPL Vs. Mohd. Salim & Anr.
Page 4 of 12filed the present complaint vide Ex.CW-1/A. PW-2 admitted that he was not the member of the raiding team and he has filed the complaint on the basis of official records.
7). PW-3 Sh. V. K. Gupta (Assistant Engineer) stated that on the basis of inspection report dated 09.02.2010 and lab report in respect of meter no.13922961, a show cause notice dated 02.03.2010 vide Ex.CW-2/E was given to both the accused by Sh. Nirakar Ray, thereby calling the accused persons to attend the personal hearing on 21.04.2010, however accused persons failed to attend the personal hearing and also failed to give any reply to the said show cause notice. PW-3 has passed speaking order dated 10.05.2010. PW-3 has given the finding in the speaking order that DAE case is established against accused persons.
In cross examination he admitted that he has passed the speaking order against the accused persons ex-parte as they were not present at the time of personal hearing. PW-3 also shown his ignorance regarding the actual date of removal of meter. He also admitted that in the speaking order dated 10.05.2010, the actual date of removal of meter in question has not been mentioned. PW-3 further admitted that no date of removal of meter was mentioned in lab report.
8). PW-4 Sh. Prasenjit (Assistant Manger) deposed that meter No.13922961 was tested by Sh. Naveen Gupta in meter testing lab at Savita Vihar and lab report was prepared on the basis of said test vide lab report Ex.CW-2/A. As per PW-4 during the test meter MD history data was found disturbed due to application of CC No. 621/10 BYPL Vs. Mohd. Salim & Anr.
Page 5 of 12ESD/HF coil.
In cross-examination PW-4 admitted that meter was not tested in his presence. He also stated that he has never seen the inspection report or the meter pertaining to this case. He also admitted that there was no illegal resistance found in the meter.
9). Thereafter, statement of accused No.1 (Mohd. Salim) u/s 313 Cr.P.C. was recorded, in which he denied the allegation against him. Accused No.1 in his statement u/s 313 Cr.P.C. stated that the photograph Ex.CW-2/D and CD Ex.CW-2/D1 does not pertains to his premises. He also stated that the meter was tested in his absence. He stated that his signatures were obtained by the inspection team on blank proforma. He stated that he has been falsely implicated in the present case. Accused did not lead defence evidence.
10). I have heard the arguments of Ld. counsel for the complainant as well as Ld. Counsel for the accused.
11). Sh. Anil Bhasin, Ld. counsel for the complainant submitted that in this case accused No.1 was the user and accused No.2 (since expired) was the registered consumer of the electricity supply in the premises in question. He further submitted that the accused indulged in dishonest abstraction of energy. He also argued that the inspection team assessed the connected load to the tune of 2.858 KW/NX against the sanctioned load of 1 KW/NX. He also stated that accused did not allow to take the photographs of the connected load. He submitted that the complainant witnesses have CC No. 621/10 BYPL Vs. Mohd. Salim & Anr.
Page 6 of 12proved the offence alleged against the accused.
12). On the other hand, Sh. Kshitiz Mahipal, Ld. Counsel for the accused submitted that accused No.1 has been falsely implicated in this case. He also argued that in the instant case the complainant company has failed to examine the person who has tested the meter in question. Further, the meter was not seized at the time of inspection. He also argued that the complainant witnesses failed to prove the offence as alleged against the accused No.1, hence, accused No.1 is entitled for acquittal.
13). I have considered the submissions of Ld. Counsel for the parties. I have also perused the file and gone through the evidence on record.
14). In the instant matter, so as to prove its case, complainant has examined four witnesses in all. PW-2 is a formal witness, who has filed the present complaint vide Ex. CW1/A. PW-1 Sh. S. K. Chanchal was the leader of the inspection team, which inspected the premises in question on 09.02.2010 for assessing the connected load on the basis of lab report dated 19.01.2010. As per PW-1 accused was found indulged in dishonest abstraction of energy for commercial purpose as the job work on laith machine were found in running condition along with grinders and other accessories. He also stated that they assessed the connected load to the tune of 2.858 KW/NX DAE. They also took photograph of the new meter installed at the premises vide Ex.CW-2/D and CD of the same was also prepared vide CW-2/D1 and load report was prepared vide Ex. CW-2/B. Thereafter the inspection team seized the meter bearing CC No. 621/10 BYPL Vs. Mohd. Salim & Anr.
Page 7 of 12No.13922961 (old meter) which was received from lab vide seizure memo Ex.CW-2/C. Admittedly, in this case there were four members in the inspection team i.e. PW-1 Sh. S. K. Chanchal, Sh. Rounaq Singh (GET), Sh. Vinod Kumar and Sh. Chob Singh (both L/M). Perusal of the connected load report Ex.CW-2/B (colly.) and seizure memo Ex.CW-2/C stated to be prepared at the time of inspection on 09.02.2010 shows that the said reports were only signed by PW-1 and one Sh. Raunaq Singh (GET) but the said reports were not signed by other two members of raiding team.
As per regulation 52 (ix) Delhi Electricity Supply Code and Performance Standards Regulation, 2007, 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.
However, as discussed above, the two members of the raiding team namely Sh. Vinod Kumar and Sh. Chob Singh (both L/M) have not signed the aforesaid reports. Therefore, the complainant has also not complied with the aforesaid mandatory regulations of the Act. As such the complainant company has left a serious lacuna in the present case.
15). Further, the print out of photograph of new meter installed at the premises at the time of inspection dated 09.02.2010 vide Ex. CW-2/D and compact disc (CD) of the same vide Ex.CW-2/D1 were CC No. 621/10 BYPL Vs. Mohd. Salim & Anr.
Page 8 of 12not proved in accordance with law as the complainant has failed to file the requisite mandatory certificate under Section 65 B of the Indian Evidence Act. Moreover, PW-1 who was the member of the inspection team has not stated anything as to who has taken the photograph PW-2/D. Complainant company has also not examine the photographer who has taken the photograph Ex.CW-2/D. Therefore, the CD and photograph placed on record are of no much help for the complainant case.
16. In the instant case, admittedly the person who has tested the meter bearing no. 13922961 was not examined by the complainant. PW-4 stated that the said meter bearing no. 13922961 was tested by Sh. Naveen Gupta in the meter testing lab at Savita Vihar and lab report was prepared vide Ex.Cw2/A. However, Sh. Naveen Gupta who has tested the meter in question has not been examined by the complainant company. Failure to examine the person who has tested the meter is fatal to the complainant case. Though in the lab report Ex.CW2/A it is observed that meter MD history data was found disturbed due to application of ESD / HF coil. It is also observed in the lab report that the meter was burnt. The complainant company ought to have examined Sh.Naveen Gupta who stated to have tested the meter in question in the lab of the complainant company so as to establish the offence alleged against the accused. Moreover, PW-4 categorically admitted that there was no illegal resistance found in the meter in question. The testimony of PW-4 has totally demolished the case of the complainant company.
17). The provision of Regulation 52 (iv) & (viii) of Delhi Electricity Supply Code and Performance Standards Regulation, CC No. 621/10 BYPL Vs. Mohd. Salim & Anr.
Page 9 of 122007, is reproduced as under:-
(iv) The authorized officer shall prepare a report giving details such as connected load, condition of meter seals, working of meter and mention any irregularity noticed (such as tampered meter, current reversing transformer, artificial means adopted for theft of energy) as per format given in Annexe XI or as approved by the Commission from time to time.
(viii) In case of suspected theft, the authorized officer shall remove the old meter under a seizure memo and seal it in the presence of consumer/his representative. The licensee shall continue the supply to the consumer with a new meter. The old meter shall be tested in a NABL accredited laboratory and the laboratory shall give a test report, in writing, which alongwith photographs / videographs shall constitute evidence thereof. The list of NABL accredited laboratories shall be notified by the commission. The authorized officer shall record reasons to suspect theft in the premises in his report.
However, in the instant matter, admittedly the meter in question was not sent for testing in a NABL accredited laboratory. The meter in question was tested in the lab of the complainant itself. Therefore, the complainant company has not complied the aforesaid mandatory provision of the Act in the present case.
18). Further, in the present case PW-1 who was the member of the inspection team failed to identify the accused no.1 during trial. PW-1 categorically stated that he cannot identify the accused due to lapse of time. It is the case of the complainant that at the time of inspection accused no.1 was found present at the site. Failure to identify the accused no.1 during trial by PW-1 also goes to the root of the complainant case.
CC No. 621/10BYPL Vs. Mohd. Salim & Anr.
Page 10 of 1219). Otherwise, also in this case public persons were neither joined the inspection nor they were examined, so as to substantiate the allegation of DAE case against the accused. There is also no satisfactory explanation on behalf of the complainant as to why the public persons were not joined in the inspection.
20). Moreover, in this case there is nothing on record as to when the meter in question i.e meter bearing no. 13922691 (old meter) was removed from the site. The complaint Ex.CW1/A is silent about the actual date of removal of the meter in question. PW-3 who has passed the speaking order dated 10.05.2010, has also specifically admitted that in the speaking order dated 10.05.2010, actual date of removal of meter in question is not mentioned. He also admitted that no date of removal of meter in question was mentioned in the lab report also. Perusal of the lab report shows that there is no mention as to when the meter in question was removed from the site. Therefore, apparently it is clear that the complainant company has left a serious lacuna in the present case as the complainant even failed to mention the actual date of removal of the meter in question. Hence, this serious lapse also goes against the complainant case.
21). In view of the foregoing reasons as discussed above, the complainant company has failed to prove the offence against the accused no.1 beyond reasonable doubt in the present case. As such the accused no.1 is entitled for acquittal. The accused no.1 is accordingly acquitted for the offence punishable u/s 135/138/151 of the Electricity Act, 2003. Bail bond of the accused no.1 stands canceled and surety discharged. Amount, if any, deposited by the CC No. 621/10 BYPL Vs. Mohd. Salim & Anr.
Page 11 of 12accused no.1 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 09.02.2010 be released by the complainant company after expiry of period of appeal.
22). Accused no.1 to furnish bail bond in terms of Section 437 (A) Cr.PC.
23). File be consigned to record room.
Announced in open court ( Lal Singh )
on 04th day of January, 2016 ASJ/Special Court (Elect.)
Tis Hazari/Delhi
CC No. 621/10
BYPL Vs. Mohd. Salim & Anr.
Page 12 of 12
CC No.621/10
BYPL V/s Mohd.Salim &Anr.
04.01.2016
Present: Sh. Jitender Shankar, AR with Sh. P.K. Rai , LR of the
complainant company.
Sh. Kshitiz Mahipal, Ld. counsel for accused no.1 with accused no.1.
Accused no.2 expired and proceedings against him are already abated.
Vide separate judgment, accused no.1 is acquitted of the charge/offence punishable U/S 135/138/151 of Electricity Act 2003. Bail bond of the accused no.1 is canceled and surety is discharged. Amount, if any, deposited by the accused no.1 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 09.02.2010 be released by the company to the accused no.1 after expiry of period of appeal.
However, in terms of Section 437 A Cr.PC., accused no.1 is directed to furnish a bail bond for the amount of Rs.10,000/- 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 bond 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/04.01.2016 CC No. 621/10 BYPL Vs. Mohd. Salim & Anr.
Page 13 of 12