Delhi District Court
Bypl vs . Neeraj Kumar & Anr. on 1 April, 2015
IN THE COURT OF SHRI ARUN KUMAR ARYA,
ADDITIONAL SESSIONS JUDGE, SPECIAL COURT
(ELECTRICITY), TIS HAZARI COURT, DELHI
CC No: 337/08
Unique case ID No: 02402R0026102009
BSES Yamuna Power Ltd.
Having its Registered office at
Shakti Kiran Building,
Karkardooma, Delhi110032
(Through its authorized representative
Sh. C.B. Sharma) ............ Complainant
Through : Sh. Jitender Shankar, AR with Sh. Nilesh Kumar, Ld.
Counsel for the company.
Vs
1. Niraj Kumar (R/C)
5021, Ghas Mandi, Pahari Dhiraj
Delhi 110006
2. Bhola (User)
5021, Ghas Mandi, Pahari Dhiraj
Delhi 110006
................ Accused
Through: Sh. Sanjeev Bajaj, Adv. for accused
CC No: 337/08
Police Station: Bara Hindu Rao
BYPL Vs. Neeraj Kumar & Anr.
Page 1
Date of Institution : 26.05.2008
Judgment reserved on : 24.03.2015
Date of Judgment : 01.04.2015
Final order : Acquitted
JUDGMENT
1. Briefly, on 23.07.2007 at about 12:55 PM, a team comprising of Sh. Shashi Kumar (AM), Sh. Niraj Giri and Sh. Krisan Lal (both lineman) had conducted a raid at the premises where accused persons were found indulging in dishonest abstraction of energy. Accused is the registered consumer & consumer of the electricity supplied at the premises. Meter was inspected on 23.07.2007, its display screen found missing. Meter box seal found missing after open the box. Seal of the meter found missing and paper seal was found tampered, meter is segregated at site and inside the meter. Extra illegal spots at PCB cut wire joint with soldered and some wire found cut for tampering purpose.
The total connected load which was illegally used by the accused for industrial purpose was assessed by the inspection team as 10.796 KW/IX/DAE against the sanctioned load of 6.00 KW. A load report was prepared at the time of inspection. A meter bearing no. 12137447 was found installed whose seal was found tampered. CC No: 337/08 Police Station: Bara Hindu Rao BYPL Vs. Neeraj Kumar & Anr.
Page 2 Necessary videography showing the connected load and the meter was taken by Sh. Prahlad of M/s Arora Photo studio by digital camera with the help of the members of the raiding team and the tampered meter were seized by the Assistant Manager (Enforcement).
The material evidence i.e. electronic meter bearing no. 23154844 was seized by Sh. Shashi Kumar (Assistant Manager) (Enforcement) from the site. The accused refused to sign the reports prepared by the member of the raiding team at the time of inspection. He neither accepted nor allowed the team member to paste the inspection report at the premises. The show cause notice dated 11.10.2007 was prepared at site for calling upon the accused to show cause as to why action should not be initiated against him for dishonest abstraction of energy, within seven days of the receipt of notice. Accused was granted a personal hearing on 25.10.2007 at 11:00 AM before the Assessing officer of the complainant company.
Another show cause notice dated 15.11.2007 was issued by the Assessing Officer calling upon the accused to show cause, by filing the reply, along with necessary documents before the assessing officer at the Enforcement Cell office of the complainant company and further granted a personal hearing on 31.12.2007 at 10:30 to 12:30 CC No: 337/08 Police Station: Bara Hindu Rao BYPL Vs. Neeraj Kumar & Anr.
Page 3 PM. Accused neither attended the personal hearing not sent any reply to the show cause notice. Since it was a case of dishonest abstraction of energy, a theft bill as per the DERC regulations and tariff was raised by the company for Rs. 1,02,338/ was served upon the accused. On the failure of accused to deposit the same, present complaint was filed against him.
2. The complainant is a company incorporated under the Companies Act, 1956 (to be referred as "company" hereinafter) having its registered office at Shakti Kiran Building, Karkardooma, Delhi110032 having its branch office at different places in Delhi. The company is the licensee for supply of electricity in major parts of Delhi, including the premises of accused i.e 5021, Ghas Mandi, Pahari Dhiraj, Delhi - 110006 (hereinafter to be referred as "premises") where the offence has been committed by the accused.
3. The complainant company (to be referred as "company" hereinafter) i.e. BSES Yamuna Power Ltd has filed the present complaint case under section 151 r/w Section 154 of the Electricity Act, 2003 for offences, inter - alia, U/S 135 & 138 read with section 150 of the Electricity Act, 2003 (hereinafter referred to as CC No: 337/08 Police Station: Bara Hindu Rao BYPL Vs. Neeraj Kumar & Anr.
Page 4 "Act) against the accused praying that accused be summoned, tried and punished as per law with a further prayer to determine the civil liability of the accused as per provisions of Section 154 (5) of the Act, 2003.
4. The accused was summoned U/S 135 of the Electricity Act 2003 (hereinafter to be referred as 'Act') by ld. predecessor of this Court as per order dated 20.11.2008 after recording the presummoning evidence. As accused no. 1 (Neeraj Kumar) did not appear in the court, consequently he was declared proclaimed offender by order dated 01.03.2011. Notice U/S 251 Cr.P.C was framed against accused no. 2 by ld. predecessor of this Court on 05.10.2011 to which accused pleaded not guilty and claimed trial.
Company in support of its case examined 5 witnesses namely PW - 1 Sh. Shashi Kumar (Sr. Manager), PW - 2 Sh. D. P. Singh (Assistant Vice President), PW - 3 Sh. Rajesh Doshi (General Manager) and PW - 4 Sh. Mukesh Sharma (Authorized Representative).
PW - 1 Sh. Shashi Kumar, deposed that on 23.07.2007 CC No: 337/08 Police Station: Bara Hindu Rao BYPL Vs. Neeraj Kumar & Anr.
Page 5 at about 2.45 PM a team comprising himself, Sh. Neeraj Kumar (lineman), Sh. Krishan Lal (lineman) on the basis of MMG report team inspected the premises no. 5021, Ghaas Mandi, Pahari Dheeraj, Delhi. At the time of inspection, team found four holes at the back side of meter. The meter was already checked by MMG department in which it was found that meter was slow by 64.13% and they replaced the meter and supply was restored through new meter.
The connected load was found 4.67KW which was being used for commercial purpose. He prepared the inspection report (Ex. PW1/A), meter detail report (Ex. PW1/B), load report (Ex. PW1/C) bore his signatures at point A in the presence of accused Bhola. Reports were tendered to the accused for signatures but he refused to sign. On his instruction, Sh. Neeraj (lineman) took photographs (Ex .PW1/D collectively) of connected load as well as meter and CD (Ex. PW1/E).
He called the Manager telephonically at site to seize the material for evidence purpose. Sh. D. P. Singh (Manager) seized the the meter in the polybag vide seizure memo Ex. PW1/F, having his signatures at point X and signatures of D. P. Singh at point Y. CC No: 337/08 Police Station: Bara Hindu Rao BYPL Vs. Neeraj Kumar & Anr.
Page 6 A show cause notice (Ex. PW1/G) was prepared the at site bearing his signatures at point A. The copy of notice alongwith copy of reports were given to the consumer which he refused to acknowledge the same. He could not identify the person who was present at the time of inspection being the user of the same. The witness identified the case property as Ex. P1.
PW - 2 Sh. D. P. Singh, deposed that on 23.07.2007, he received a telephonic call from Sh. Shashi Kumar as he detected a theft of electricity at the premises bearing no.5021, Pahari Dheeraj, Ghaas Mandi, Delhi. He reached at the site and team shown him the theft of electricity. He instructed the line man to remove the single phase electronic meter and seized it vide seizure memo (Ex. PW - 1/F) bore his signature at point A. The witness identified the case property as Ex. P1.
PW - 3 Sh. Rajesh Doshi, in the year 2007, was posted as Assessing Officer in the company. On the basis of inspection reports dated 23.07.2007, he issued a show cause notice (Ex. PW 3/ A) to the accused persons on 13.08.2007 to appear before him on dated 06.09.2007 at 10.30am to 12.30 PM. On the basis of said show cause notice consumer attend the personal hearing and submitted CC No: 337/08 Police Station: Bara Hindu Rao BYPL Vs. Neeraj Kumar & Anr.
Page 7 that connected load was not correct. On 19.10.2007, he passed detailed speaking order (Ex. PW3/B) and advised to raise a dishonest abstraction of energy bill for tampering the meter.
PW - 4 Sh. Mukesh Sharma deposed that the present complaint Ex. CW1/A was filed by Sh. C. B. Sharma. He was authorized vide letter of authority in his favour Ex. CW1/B.
5. In his statement recorded U/S 313 Cr.P.C, accused had denied the allegation and pleaded that the case of the company was false and fabricated.
6. Ld. Counsel for the accused argued that case of the company was fabricated. During cross examination, PW2 admitted that the meter was not checked by him or the members of raiding party who were accompanied him as the same was already inspected by the MMG department. At the time of inspection, no sealing material or any other document was affixed upon the meter showing that the meter was inspected by the MMG department. No seal of Sh. D. P. Singh was affixed at the time of sealing of the material. In the photographs Ex. PW1/D some persons were gathered at the spot but he could not tell about their identity. In the CC No: 337/08 Police Station: Bara Hindu Rao BYPL Vs. Neeraj Kumar & Anr.
Page 8 photographs and in the CD no number of the property was shown. The labour present at the spot told him the name of user as Bhola but he was not examined in court. No independent person was joined at the time of inspection. New meter was installed by the MMG department after the meter was removed from the site but did not remember the name of officials of MMG department who were present at the time of inspection.
PW - 3 admitted in his cross examination that no public persons were present at the spot and no one was requested by the team to join the raiding party as a witness. He did not remember if any remarks or papers were pasted on the meter which were allegedly seized at the spot. No independent persons was joined at the time of seizure of case property.
PW - 3 Sh. Rajesh Doshi admitted during his cross examination he did not verify the aspect that Bhola was the user of the meter. He did not summon any of the member of the inspecting team for personal hearing. No document was placed on record in which accused Neeraj Kumar gave the name of Bhola or Mohd. Jafar as user of the meter in dispute. He prepared the speaking order on the basis of the report furnished by the Enforcement Department and CC No: 337/08 Police Station: Bara Hindu Rao BYPL Vs. Neeraj Kumar & Anr.
Page 9 not on the basis of the report of the Meter Management Group (MMG) Department.
PW - 4 Sh. Mukesh Sharma admitted in his cross examination that he was not the member of the raiding team. He was not acquainted with the complaint. He had filed the complaint on the basis of the official records.
7. He further argued that company has initially filed the complaint against registered consumer Neeraj and user Bhola, but later on complaint has been amended and name of Mohd. Zafar was added without filing any evidence showing that Mohd. Zafar and Bhola are the same person. Mohd. Zafar was not shown in any of the photographs or videography. PW - 1 Sh. Shashi Kumar did not identify the person who was present at the time of inspection being user of the premises. It was requested that company had failed to prove its case so, accused was entitled to be acquitted in this case.
8. Per contra, counsel for complainant has argued that the during inspection it was found by the team that accused was the registered consumer & consumer of the electricity supplied at the premises. Meter was inspected on 23.07.2007 and its CC No: 337/08 Police Station: Bara Hindu Rao BYPL Vs. Neeraj Kumar & Anr.
Page 10 meter box seal was found missing. Seal of the meter found missing and paper seal is found tampered meter is segregated at site and inside the meter. Extra illegal spots at PCB cut wire joint with soldered and some wire found cut for tampering purpose. The total connected load which was illegally used by the accused for industrial purpose was assessed by the inspection team as 10.796 KW/IX/DAE against the sanctioned load of 6.00 KW. A load report was prepared at the time of inspection. It was argued that as per the testimonies of company's witnesses the company has proved its case against the accused beyond reasonable doubt. Accordingly, accused is liable to be convicted in this case.
9. I have gone through the evidence adduced on record and considered the arguments of counsel for both parties.
10. It is admitted case of company that subject meter was segregated at the spot. Tampering is the main stay of the case of the company and member of the raiding team did not send the meter to the laboratory and segregated the same at the site. Meter is required to be sent to the laboratory for checking. As per judgment of R.E.S.B.Vs.M/s. Deepak Oils, AIR 1998 Rajasthan 176 it was held that where meter was never sent to laboratory for checking CC No: 337/08 Police Station: Bara Hindu Rao BYPL Vs. Neeraj Kumar & Anr.
Page 11 and without testing by any independent laboratory, no case of DAE can be booked and accordingly the impugned bill was quashed.
As per complaint, connected load was found 10.796 KW used for industrial purpose against sanctioned load of 6.00 KW, however, in the pre - summoning evidence, allegations of PW - 1 and most importantly speaking order connected load was found 4.67 KW against sanctioned load of 0.75 KW used for commercial purpose. There are lot of variations in the complaint or pre - summoning evidence and speaking order.
As per complaint meter bearing no. 12137447 in which tampering was found by the company, however, as per complaint of para no. 9 the tampered electronic meter bearing no. 23154844 was seized at the site. As per para no. 9 of the complaint it is clearly mentioned that meter was seized by Sh. Shashi Kumar, however, PW
- 2 Sh. D. P. Singh deposed in his examination - in - chief that he was called by Sh. Shashi Kumar for seizing the material. In the complaint it was also mentioned that accused is the registered consumer and user of the electricity supply at the premises, it was not clarify as to who was the registered consumer or user of the premises. This fact was also not mentioned by the company CC No: 337/08 Police Station: Bara Hindu Rao BYPL Vs. Neeraj Kumar & Anr.
Page 12 witnesses.
PW - 1 Sh. Shashi Kumar admitted in his cross examination that some persons were gathered at spot, however, PW
- 2 Sh. D. P. Singh admitted during cross examination that no public persons were present at the spot.
PW - 1 Sh. Shashi Kumar admitted during his cross examination that one labour had met them and he disclosed the name of user as Bhola at site. Company has not examined this so - called Bhola in the court. Company has not filed on record the documents which shows that Neeraj is the registered consumer and Bhola @ Mohd. Jafar is the user of the company. They did not procure the documents of ownership / occupancy at the time of inspection. No inquiry on the aspect of occupancy of the premises was made. They have no written authority to conduct the raid at the premises. No independent person was joined at the time of inspection / seizure of case property. It was further submitted that there was no evidence on record which connect the theft with the accused. As per judgment of Hon'ble High Court of Bombay in Criminal Appeal No. 245/2007 titled as Ramesh Vs. Maharashtra State Electricity Board dated 03.03.2011, in which it is held that it is CC No: 337/08 Police Station: Bara Hindu Rao BYPL Vs. Neeraj Kumar & Anr.
Page 13 point out that prosecution must examine independent persons to prove their case against the accused but as per present case the officers of the company did not join any of the independent person while they having ample opportunity to join the persons present at site.
As per para no. 6 of the complaint videography and photographs were taken by one Sh. Prahlad (from M/s Arora Photo Studio) with the help of the raiding team, his name was also not cited in the list of witness, however, PW - 1 Sh. Shashi Kumar clearly deposed in his examination - in - chief that photographs were taken by lineman Sh. Neeraj. Both Sh. Prahlad as well as Sh. Neeraj were not called for their examination in the court. As per the recent judgment of Hon'ble High Court in 2012 (4) JCC 2713 titled as BSES Rajdhani Power Ltd. Vs. Sunheri & Ors., the non production of the photographer was held to be fatal to the case of the company.
The Compact disc (Ex. PW1/E) placed on record is of no help to the company as the same was not proved in accordance with Section 65B of Indian Evidence Act. As per judgment of Hon'ble High Court of Delhi in Crl. L. P. No. 173/2014 titled as BSES Yamuna Power Ltd Vs. Gyan Chand dated 15.04.2014, wherein it is observed CC No: 337/08 Police Station: Bara Hindu Rao BYPL Vs. Neeraj Kumar & Anr.
Page 14 that requisite certificate U/S 65 B is required to be produced in evidence in the court. Even if, no certificate was filed, the company could have proved the electronic record by leading secondary evidence under subclause ''d'' of section 65 of Evidence Act. (Achchey Lal Yadav Vs . State Crl. App. No. 1171/12 decided on 06.09.2014) Hon'ble High of Delhi.
Initially company has filed the case against one Bhola and after the appearance of one Mohd. Jafar, company amend the name of accused no. 2 as Bhola @ Mohd. Jafar, without verifying the facts that Bhola @ Mohd. Jafar are the same persons and user of the premises. No officials of the company visited the site after conducting the inspection for verifying the abovesaid facts that who was the actual user / owner of the premises. They admitted that team made the case against Mohd. Jafar and not Bhola.
PW - 3 Sh. Rajesh Doshi submitted during his examination - in - chief that show cause notice dated 13.08.2007 was issued by him for appearing the accused on 06.09.2007 for personal hearing, however, this fact was not mentioned in the complaint. He also admitted during his cross examination that Neeraj was appeared before him and submitted his contentions, how this fact CC No: 337/08 Police Station: Bara Hindu Rao BYPL Vs. Neeraj Kumar & Anr.
Page 15 was also neither mentioned in the complaint nor his contentions were filed on the record by the company.
As per Regulation 53 (ii) of Delhi Electricity Supply Code and Performance Standards Regulations 2007 "speaking order shall passed within 3 days", however in the present case personal hearing was given on 06.09.2007 and speaking order was passed on 19.10.2007 which is after 1 ½ month.
Inspection was carried on 23.07.2007on the reference of MMG Department No. 300 dated 13.07.2007, however, this reference was not filed on record. PW - 1 deposed that meter was already checked by the MMG department, however, no official from the MMG department was called at site by the company to prove their case against the accused persons.
As per examination - in - chief of PW - 1 Sh. Shashi Kumar, he deposed that copy of notice along with copy of reports were given to the consumer who refused to acknowledge the same, if a person who was present at the time of inspection refused to receive the documents at the site, then it is the duty of the company to send entire documents by post. They did not call police or the PCR when CC No: 337/08 Police Station: Bara Hindu Rao BYPL Vs. Neeraj Kumar & Anr.
Page 16 he refused to accept the reports at site.
PW - 1 Sh. Shashi Kumar, deposed that labour was present at site who told the team the name of the user as Bhola. The Hon'ble Delhi High Court in Crl. M.C. 2296/2008 titled as BRPL & Ors. Vs. Ishwar Chand & Anr. dated 10.02.2009 has issued certain guidelines to the electricity companies to videograph the sign boards of the name plates as well as the accuracy of inspected address with nearby landmark. It was also directed to videograph the person who met with the raiding team at site. An office order bearing no. BSES/RPL/HOD/001 dated 30.08.2008 already exists in this respect. Company has failed to prove adhere to abovesaid guidelines.
11. A special Act created always have special measures to avoid its misuse by the investigating agencies, so bearing in mind this principle, Delhi Electricity Supply Code and Performance Standards Regulations, 2007 were formulated. These regulations have statutory force and as per regulation 52, 53 and 54 special measures were added to protect the interest of accused / consumer in case of theft of electricity. The procedure prescribed in the Act 2003 and the Code 2007 has to be adhered in words and spirit and deviation therefrom would vitiate the statutory orders CC No: 337/08 Police Station: Bara Hindu Rao BYPL Vs. Neeraj Kumar & Anr.
Page 17 passed therein. In the present case, as already discussed in the forgoing paras, there were violations in not adhering to the regulations prescribed in the Code 2007, thus it has a negative impact on the merit of this case. Reliance is placed on Ashok Kumar & Ors. Vs. State of U.P & Ors. 2008(6) ADJ 660 para 76.
12. Although a conviction can be safely based on the testimony of a single witness which seems trustworthy and reliable. In the present case, there are material contradictions in the testimony of company witnesses. In order to connect the accused with the offence reliable evidence is required to be led by the company which show that the accused was involved in some overt act of tampering the meter. No public persons who were present at the site have been cited or examined as a witness while the meter was segregated. No other independent evidence has been examined in this case to prove that the accused was committing the theft. In the absence of the same it shall not be safe to connect the accused with the theft of electricity.
13. In view of the foregoing reasons, as the company has failed to prove the theft of electricity against the accused no. 2 (Bhola @ Mohd Jafar) beyond reasonable doubt in the CC No: 337/08 Police Station: Bara Hindu Rao BYPL Vs. Neeraj Kumar & Anr.
Page 18 present case. The accused is accordingly acquitted, bail bond of the accused stands canceled and surety discharged. Amount, if any, deposited by the accused as a condition for bail or in pursuance to interim order of any court qua the theft bill raised by the company on the basis of inspection dated 23.07.2007 be released by the company after expiry of period of appeal.
Case be retrieved as and when accused no. 1 (Neeraj Kumar) is brought or produced before the court U/S 299 Cr.P.C.
Let copy of this judgment be sent to Additional / Deputy Commissioner of Police (Central) for necessary action.
File be consigned to record room.
Dictated and announced in
open court (Arun Kumar Ayra)
ASJ/Special Court (Elect.)
Tis Hazari/Delhi/01.04.2015
CC No: 337/08
Police Station: Bara Hindu Rao
BYPL Vs. Neeraj Kumar & Anr.
Page 19