Delhi District Court
Brpl vs . Razi Ahmed Page No. 1 Of 19 on 24 December, 2022
IN THE COURT OF SH. VINOD KUMAR MEENA,
ADDITIONAL SESSIONS JUDGE, SPECIAL
ELECTRICITY COURT, SOUTH WEST DISTRICT,
DWARKA COURTS, DELHI
Ct. Case No. 1197/2021
CNR No. DLSW01-009003-2021
BSES Rajdhani Power Limited
Having its registered office at:
BSES Bhawan, Nehru Place,
New Delhi-110019
Also at:
Corporate, Legal and Enforcement Cell,
Near Andrews Ganj Market, Andrews Ganj,
New Delhi - 110049
through Mr. Ashutosh Kumar
(Authorized Representative) .....Complainant
Versus
Razi Ahmed, S/o Sh. Amir Ahmad (User & R.C.)
R/o F/F, Shop at H no. 42, Block-M,
Kh. No. 666, Chanakya Place-II,
Uttam Nagar, New Delhi- 110059
......Accused
Date of institution of the case : 22.09.2021
Offence complained of : U/s 135/138 Electricity Act
Plea of the accused : Pleaded not guilty
Final order : Acquittal
Date on which judgment reserved : 22.12.2022
Date of judgment : 24.12.2022
- :: JUDGMENT :: -
1.Vide this judgment, the court shall decide the present complaint case which is filed by complainant BSES Rajdhani Ct. Case No. 1197 of 2021 BRPL Vs. Razi Ahmed Page No. 1 of 19 Power Ltd. U/s 135/138 of Electricity Act against accused Razi Ahmed for committing theft by tampering of the meter.
2. Before proceeding further on deciding the present matter on merits, the brief facts of the case are mentioned herein as under:
Brief facts:
I. It is the case of complainant that on 18.12.2020 the authorized officers of the complainant/BSES conducted a raid on the premises of the accused and found certain discrepancies in meter bearing no. 23557053(hereinafter referred as impugned meter) installed against CA No. 103138159 for the premises i.e. F/F, Shop at H. No. 42, Block-M, Kh. No. 666, Chanakya Place-II, Uttam Nagar, New Delhi-110059(hereinafter referred as impugned premises) and took out the same. In place of old meter, raiding team restored the supply of the premises through a new electronic meter bearing no. 60339177. The meter bearing no. 23557053 was sent to the laboratory in sealed condition for testing/analysis of the meter in laboratory.
II. On 04.02.2021, the impugned meter was tested by the laboratory and as per Lab report(Ex.PW-1/A), following observations were made:-
1) Meter top cover found re-fixed.
2) Glue marks found on periphery of meter.
3) N. Cut LED, EL LED & Rev LED found cut.
4) Illegal soldering found on PCB at Phase CT o/p location & neutral CT o/p location.
5) Meter found tempered.Ct. Case No. 1197 of 2021 BRPL Vs. Razi Ahmed Page No. 2 of 19
III. On 11.02.2021, at about 02:30 PM(hereinafter referred as impugned date and time), a BSES team comprising of Sh. Sachin Tomar (Assistant Manager, BSES), Sh. Arunesh Kumar(DE, BSES), Sh. Hari Prasad(Lineman BSES) and Sh. Deepak( Junior Videographer, M/S Arora Photo Studio) visited premises of accused i.e. F/F, Shop at H. No. 42, Block-M, Kh. No. 666, Chanakya Place-II, Uttam Nagar, New Delhi-110059 for an inspection in furtherance of lab report and they found that meter bearing no. 60339177 was found installed at the premises with C/R -395, KW/H, MDI- 1.346 KW and sewing work was occupied in the premises.
IV. Connected load of the ground floor on 11.02.2021 was assessed to be 7.445 KW for commercial purpose i.e. running sewing machine work in the name of BSRA Infra Interior Private Ltd.
V. Members of BSES raiding/inspection team prepared the Inspection Report Ex. PW1/B, Load Report Ex. PW1/C and Seizure memo Ex. PW1/D. Accused refused to receive and sign the reports/memos. Based on these reports, complainant raised a theft bill Ex. PW1/G of Rs 4,01,496/- against the accused.
VI. Videography of the site was done by Deepak Junior from M/S Arora Photostudio.
VII. Complainant alleged that accused acted dishonestly with an intention to cause wrongful gain to himself and Ct. Case No. 1197 of 2021 BRPL Vs. Razi Ahmed Page No. 3 of 19 wrongful loss to it, employed an illegal method to steal electricity. He illegally abstracted and consumed electricity without paying the applicable tariff. He is thus alleged to have committed direct theft of electricity punishable under section 135/138 of Electricity Act, 2003.
VIII. On these averments, complainant lodged the instant complaint alleging commission of offence punishable under section 135/138 of Electricity Act, 2003 through its authorised representative Mr. Ashutosh Kumar.
3. Copy of complaint and supporting documents were supplied to the accused. After hearing arguments, notice u/s 251 of Cr.P.C for the offence under section 135/138 of Electricity Act, 2003 was served upon accused Razi Ahmed to which he pleaded not guilty and claimed trial.
Complainant's evidence:
4. In complainant's evidence, following six witnesses were examined.
I. Complainant produced Sh. Sachin Tomar, Manager, BSES as PW-1. He deposed that he was a member of the raiding team and on 11.02.2021, at about 02:30 PM, he and the team comprising of Sh. Arunesh Kumar (Diploma Engineer, BSES), Sh. Hari Prasad (Lineman) and Sh. Deepak Junior(Videographer from M/S Arora Photo Studio) on the basis of lab report dated 04.02.2021visited and inspected the premises i.e. Shop at House no. 42, Block-M, Ct. Case No. 1197 of 2021 BRPL Vs. Razi Ahmed Page No. 4 of 19 Khasra No. 666, Chankya Place-II, Uttam Nagar, New Delhi-110059. He further deposed that the premises comprised of ground and first floor and premises was being used by accused Razi Ahmed. He further deposed that one electronic meter bearing no. 60339177 with current reading 395 KWH and MDI 1.346 KW was found installed at site in the name of accused Razi Ahmad Vide CA no. 103138159 and the said meter has been sanctioned only for the first floor. He further deposed that on the ground floor commercial activity of sewing of clothes was being carried out and they assessed the connected load of the ground floor which was found to be 7.445 KW for commercial purpose i.e. for running sewing machine work in the name and style of BSRA Infra Interior Pvt. Ltd and the aforesaid meter was feeding the load of the ground floor. He further deposed that raiding team prepared the Inspection Report Ex. PW1/B, Load Report Ex. PW1/C and Seizure memo Ex. PW 1/D. He further deposed that videography was done by Deepak Junior and the same is Ex. PW-1/E and photographs are Ex. PW-1/F(colly.).He further deposed that after preparation of the reports, they offered the same to accused to receive and sign the same but he refused and also did not allow them to paste the same at the premises. He further deposed that enforcement office raised the theft bill against the accused which is Ex. PW-1/G. During his cross- examination by Ld. Defence counsel, he denied the suggestions put by the defence. He further corroborated the Ct. Case No. 1197 of 2021 BRPL Vs. Razi Ahmed Page No. 5 of 19 version of complaint in his cross-examination.
II. Complainant produced Sh. Ashutosh Kumar, Authorized Representative of complainant as PW-2. He deposed that he had been authorised vide Power of Attorney Ex. PW2/A to institute the present complaint. During his cross-examination by Ld. Defence counsel, he denied the suggestions put by the defence.
III. Complainant produced Sh. Pankaj Kumar Sinha, Engineer, BSES Meter Testing Lab as PW-3. He deposed that he received a meter bearing no. 23557053 in bag no. 10181901 in his laboratory for testing/further analysis of the meter. He further deposed that he first take out the meter and checked it physically which was seemed to be re-fixed and thereafter, the meter data was downloaded by Sh. Arun Pal, Associate Engineer and same is Ex. PW-3/A. Thereafter, the accuracy of meter was checked. He further deposed that meter was opened by Sh. Arun Pal and found that there was glue mark on meter periphery, phase CT and Neutal CT of the meter was soldered illegally, leg of N Cut, LED, RED, Led and Ph LED was cut. He further deposed that the said laboratory report (Ex.PW-1/A) was prepared by Sh. Arun Pal and approved by him. He further proved the photograph of the meter which was tested as Ex. PW-3/B and broken meter as Ex. PW-3/C. During his cross- examination by Ld. Defence counsel, he denied the suggestions put by the defence.
Ct. Case No. 1197 of 2021 BRPL Vs. Razi Ahmed Page No. 6 of 19IV. Complainant produced Sh. Hari Prasad, Lineman, BSES as PW4. He further deposed on the same lines as PW1. During his cross-examination by Ld. Defence counsel, he denied the suggestions put by the defence.
V. Complainant produced Sh. Deepak, Videographer, BSES as PW 5. He deposed on the same lines as of PW1. During his cross-examination by Ld. Defence counsel, he denied the suggestions put by the defence.
VI. Complainant produced Sh. Virender S/o Sh. Somveer, GET, BSES as PW-6. He entered the witness box with record pertaining to meter bearing no. 23557053 and with consumption pattern pertaining to the new meter bearing no. 60339177 is Ex. PW6/A and meter recording data pertaining to meter bearing no. 60339177 is Ex. PW-6/B. During his cross-examination by Ld. Defence counsel, he denied the suggestions put by the defence.
Statement of accused:
5. Examined under section 313 of CrPC, accused pleaded innocence. He, inter alia, stated, "I was not present in the house at that time and prosecution witnesses are interested witnesses and have deposed falsely against them. Accused do not want to lead any defence evidence. "
6. At the stage of defence evidence, BSES filed an application u/s 311 Cr.PC read with Section 91 of Cr.PC. Through this application, the complainant sought permission to Ct. Case No. 1197 of 2021 BRPL Vs. Razi Ahmed Page No. 7 of 19 place on record speaking order dated 15.02.2021. The said application was disposed of allowed on 18.08.2022 with a cost of Rs. 10,000/-.
7. Complainant produced Sh. Rohit Garg S/o Sh. G.K Garg as PW-7. He deposed that on 18.12.2020 one single phase electronic meter bearing no. 23557053 was replaced by MMG(Meter Management Group) with a new electronic meter bearing no. 60339177. He further deposed that meter bearing no. 23557053 was tested in laboratory and on testing of meter, laboratory declared the meter as tempered and following observations were given by laboratory : 1) Meter top cover found re-fixed. 2) Plastic and hologram seals were found tampered. 3) Glue marks found on periphery of meter 4) Neutral Cut was found on LED, EL LED & Rev 5) Illegal soldering found on PCB at Phase CT output location & neutral CT o/p location and in conclusion the laboratory declared the meter as tempered. He further deposed that on basis of inspection report (Ex. PW-1/B), laboratory report (PW-1/A) and consumption pattern (Ex. PW-7/A) was analysed by him and he found that consumption pattern for one year from 12.12.2019 to 17.12.2019 was 11.16 per cent of the assessed consumption. He further deposed that the consumption of the meter in question increased after meter replacement; also consumption pattern was non-uniform. He further deposed that such a low consumption of the meter corroborates the conclusion drawn by the laboratory. The speaking order dt. 15.02.2021 is now Ex. PW-7/B. During his cross-examination by Ld. Defence counsel, he denied the suggestions put by the defence.Ct. Case No. 1197 of 2021 BRPL Vs. Razi Ahmed Page No. 8 of 19
8. Supplementary statement u/s 311 of Cr.PC of accused was again recorded on 20.08.2022 wherein he reiterated the contentions made by him at the time of recording of his statement u/s 313 Cr.PC on 06.06.2022.
9. Final arguments advanced by Ld. Counsel for the complainant and ld. counsel for accused heard. Case file perused carefully.
10. It is argued by Ld. Counsel for the complainant that accused was committing theft of electricity by tempering the meter. It is also argued that the meter was taken from the premises on 18.12.2020 and restored the supply of the premises through a new electronic meter bearing no. 60339177. The meter bearing no. 23557053 was sent to the laboratory in sealed condition for testing/analysi. It is also argued that on 04.02.2021 meter was tested by the laboratory and as per lab report, meter was found as tempered which substantiated that accused was committing theft of electricity by tempering the meter. It is also argued that on 11.02.2021 inspection was conducted at the impugned premises and total connected load was assessed as 7.445 KW for non-domestic purpose. It is also argued that the complainant has proved the case through seven witnesses and accused be convicted.
11. On the other hand, it is argued by Ld. Counsel for accused that present case has been filed on the basis of false and concocted facts just to harass the accused in the present matter. It is further argued by Ld. Counsel for the accused that accused has Ct. Case No. 1197 of 2021 BRPL Vs. Razi Ahmed Page No. 9 of 19 never committed theft of electricity. It is also argued that no proof of tampering or any other manipulation was detected or found on the spot by BSES officials and they replaced meter and took the earlier meter bearing no. 23557053. It is also argued that the case has been made on the basis of laboratory report, however, no notice or intimation of any kind was sent to the accused which suggested the apparent manipulation on the part of complainant. It is further argued that no speaking order was passed which is corroborated from the fact that the speaking order was not filed along with complaint and same was filed at the time of defence evidence after moving application u/s 311 Cr.PC. Even no notice was sent for personal hearing before passing the so called speaking order. It is also argued that the laboratory report has been prepared on the basis of whims and fancies of BSES officials in connivance of laboratory and the same is nothing but false and fabricated. It is finally argued by Ld. Counsel for accused that complainant failed to prove its case, so the accused may be acquitted.
12. After hearing the submissions of both the sides and before proceedings further with deciding the present case, it is inevitable to discuss here as to whether the accused is a consumer within the meaning of section 2(15) of Electricity Act, 2003 or not. To decide this, the provision as enumerated under Section 2(15) of Electricity Act, 2003 is quoted here as under:
"Consumer" means any person who is supplied with electricity for his own use by a licensee or the Government or by any other person engaged in the business of supplying electricity to the public under this Act or any other law for the time being in force Ct. Case No. 1197 of 2021 BRPL Vs. Razi Ahmed Page No. 10 of 19 and includes any person whose premises are for the time being connected for the purpose of receiving electricity with the works of a licensee, the Government or such other person, as the case may be.
13. After going through the abovementioned definition/meaning of consumer and applying the same in the factual matrix of the present case; it is observed by the court that accused Razi Ahmed was admittedly carrying on his business in the premises in question. He was using electricity, which was supplied by the complainant, in the impugned premises. A meter bearing no. 23557053 had already been installed in the impugned premises and the same was replaced with a new meter bearing no. 60339177 at the impugned premises. Accordingly, accused Razi Ahmed is coming within the ambit of meaning of consumer as provided under Section 2(15) of Electricity Act, 2003.
14. Now, the question arises as to whether the complainant has proved the allegations as made through the present complaint thereby raising the presumption as provided under Section 135 of Electricity Act, 2003.
15. It is the allegation of the complainant that accused was committing theft of electricity by tempering the meter. It is also the case of the complainant that the meter was taken from the premises on 18.12.2020 and supply of electricity was restored through a new electricity meter bearing no. 60339177 and the meter was sent to the laboratory in sealed condition for testing/analysis. It is also the case of complainant that on 04.02.2021 meter was tested by the laboratory and as per lab report, meter was found tempered which substantiated the fact Ct. Case No. 1197 of 2021 BRPL Vs. Razi Ahmed Page No. 11 of 19 that accused was committing theft of electricity by tempering the meter. So the main contention of the complainant is that the meter was tested in the laboratory and as per laboratory report Ex. PW1/A, it was proved that accused was committing theft of electricity by tempering the meter. At this stage, it becomes inevitable to deal the contention of accused to the effect that he was not intimated or given notice of the fact that the impugned meter is going to be tested in a laboratory. It is noticed by the court that PW3 is the official from the said laboratory and he categorically averred that he was not aware as to whether any notice was served upon consumer to remain present in the laboratory at the time of testing of the meter. The relevant para of cross-examination of PW-3 is quoted here as under:-
"...I do not know whether any notice was served upon the consumer to be present in the laboratory at the time of testing of the meter..."
There is no proof or evidence to substantiate that any notice was served upon the accused before conducting the said test.
16. At this stage, court deem it fit to mention here the relevant provisions as provided in Regulation 32(8) of the Delhi Electricity Regulatory Commission (Supply Code and Performance Standards Regulations), 2017(hereinafter referred as DERC Supply Code 2017). The same reads as under :-
"32 (8) Testing of tampered meter
(i) If the Licensee suspects a case of unauthorised use of electricity and theft of electricity through a tampered meter, the meter shall be tested in an accredited laboratory notified by the Ct. Case No. 1197 of 2021 BRPL Vs. Razi Ahmed Page No. 12 of 19 Commission for that purpose:Provided further that in the absence of an accredited laboratory notified by the Commission, the meter shall be tested in any accredited laboratory other than that of the Licensee.
(ii) The Licensee shall remove the meter from site/consumer‟s premises and seal it in the presence of the consumer or his representative in a container affixing thereon paper seals which shall be signed by both the parties. In case the consumer refuses to sign the paper seal, the same shall be photographed and videographed.
(iii) The Licensee shall schedule a date and time for the testing of meters with the accredited laboratory notified by the Commission and shall give at-least 3 (three)days prior notice to the consumer, intimating the date and time of testing so that the consumer or his authorized representative, if so desires, can be present during such testing.
(iv) The Licensee shall keep the sealed container with the meter under safe and secure custody, and hand over the same to the accredited laboratory notified by the Commission for testing on the scheduled date.
(v) If at the time of handing over the sealed container with the meter for testing to the accredited laboratory notified by the Commission,it is found that the seal of the container is damaged or tampered or missing, in all such cases the licensee shall replace the meter at its own cost and shall not carry out any further proceedings or actions against the consumer on account of tampering or suspected tampering of the meter.
(vi) The accredited laboratory notified by the Commission shall test the meter on the scheduled date.
(vii) If as a result of testing, it is established that:
a. the meter was not tampered, the licensee shall replace the meter free of charge, and it shall neither charge any fee for testing, nor initiate any action against the consumer. b. the meter was tampered, the licensee shall initiate action against the consumer, as per the provisions of the Act and applicable regulations for theft of electricity or unauthorized use of electricity, as the case may be, and shall also recover the cost of meter and the testing fee as notified in the Commission‟s Orders from the consumer." (underlined for emphasis) Ct. Case No. 1197 of 2021 BRPL Vs. Razi Ahmed Page No. 13 of 19
17. From the above mentioned and especially after reading Regulation 32(8)(iii) of DERC Supply Code 2017, it is clear that a mandate has been given to the BSES to the effect that they have to give notice of at least 3 (three)days thereby intimating the date and time of said testing, which is not done in this case. The entire case of the complainant is based on the lab report i.e. Ex. PW1/A, however, same is under clouds on the ground that the mandatory notice has not been served to the accused. The lab report Ex. PW1/A has not passed the test of mandate as provided by above mentioned Regulations.
18. The basis of impugned theft bill Ex. PW1/G is the lab report Ex. PW1/A as well as the speaking order Ex. PW-7/B. It is again pertinent to mention here that said lab report(Ex. PW-1/A) has been prepared without giving the mandatorily notice as provided under Regulation 32(8)(iii) of DERC Supply Code 2017. As far as the speaking order Ex. PW-7/B is concerned, the same was not filed along with the complaint and was brought on record and exhibited only after recording of statement of accused u/s 313 of Cr.PC after moving application u/s 311 of Cr.PC.
19. Before proceeding further, the court deem it fit to mention here the relevant provisions as provided in Regulation 58 of the Delhi Electricity Regulatory Commission(Supply Code and Performance Standards Regulations), 2017. The same reads as under :-
"58. Procedure for dealing the case of Unauthorized Use of Electricity (UUE):-Ct. Case No. 1197 of 2021 BRPL Vs. Razi Ahmed Page No. 14 of 19
(1) Provisional assessment and Notice:-
If the Assessing officer on the basis of Inspection Report and other materials comes to the conclusion that it is prima facie a case of unauthorised use of electricity, he shall:
(i)make provisional assessment based on the best of his judgement which is reasonable in the given circumstances and is based on all the available evidence and records. While doing so the Assessing officer shall compute the amount payable by the person benefited by the unauthorized use of electricity as per provision laid down in sub-section (5)read with sub-section (6)of Section 126 of the Act:
Provided that if the period of unauthorized use of electricity can be conclusively established, the assessment shall be done for the entire period for which the unauthorized use was taking place and if the period of such unauthorized use is not known or cannot be conclusively established, the period of assessment shall be limited to 12 (twelve) months immediately preceding the date of inspection:
Provided further that period of unauthorized use of electricity shall be assessed based on the following factors:-
a. actual period from the date of commencement of supply to the date of inspection;
b. actual period from the date of replacement of component of metering system in which the evidence is detected to the date of inspection;
c. actual period from the date of preceding checking of installation by the assessing officer to date of inspection; d. data recorded in the energy meter memory wherever available;
e. based on the document being relied upon by the accused person.
(ii) Serve a notice along-with a provisional assessment bill and copy of videography of inspection, within 7(seven) days from the date of inspection or date of receipt of meter testing report, if required, whichever is later, to the consumer giving reasons as to why a case of unauthorised use of electricity is being initiated against him. The notice should clearly state the time, date and place at which the reply has to be submitted and the designation of the person to whom it should be addressed.
(2) Objection against notice along-with provisional Ct. Case No. 1197 of 2021 BRPL Vs. Razi Ahmed Page No. 15 of 19 assessment:-The consumer, on whom notice along-with a provisional bill of assessment has been served, may file objections, if any, before the Assessing officer, within 7 (seven) days from the date of receipt of notice.
(3) Personal Hearing:-
(i) The Assessing officer shall arrange a personal hearing with the consumer or his authorized representative within 7 (seven) days from the date of filing of consumer‟s objections.
(ii)At the request of the consumer, the hearing may be arranged for a future date but not later than 10 (ten) days from the date of filing of the objections by the consumer.
(4) Final assessment Order:-
(i) The Assessing officer shall pass a final assessment order within 30 (thirty)days from the date of service of the order of provisional assessment of the electricity charges payable by such person.
(ii)The final order of assessment shall clearly show as to whether the case of unauthorized use of electricity is established or not. Such Order shall contain the brief of inspection report, submissions, oral or written, made by consumer and reasons for acceptance or rejections of the same.
(iii)If no unauthorized use of electricity is established, the Assessing officer shall pass an Assessment Order dropping the case immediately and the consumer shall be informed accordingly with a copy to the next higher officer.
(iv)In case the unauthorized use of electricity is established, the Assessing officer shall assess the electricity charges as per provisions contained in sub-section (5)read with sub-section (6)of the Section 126 of the Act and shall pass the final Assessment Order under sub-section (3) of Section 126 of the Act.
(v)The assessment of energy in the final order shall be made as per the formula prescribed in Appendix-Ito the Regulations:Provided that if unauthorized use of electricity is on account of wrong usage of tariff category or for the premises or areas other than for which supply of electricity was authorised, the Assessing officer shall take assessment of energy as recorded in the meter for the period of assessment.
(vi)While making the assessment bill, the Licensee shall give credit to the consumer for the amount already paid by the consumer for the period of the assessment bill.
(vii)The Final Assessment Order, shall clearly mention that the Order is appealable by the consumer before the Appellate Authority (name, designation and address to be mentioned) Ct. Case No. 1197 of 2021 BRPL Vs. Razi Ahmed Page No. 16 of 19 within 30 (thirty) days of serving the said order as per provisions of sub-section (1) of Section 127 of the Act.
(5)Billing & payment based on final assessment Order:-
(i)The Licensee shall serve the bill to the consumer for charges of unauthorized use of electricity as per the final assessment order issued by the Assessing Officer.
(ii)The bill shall be payable by the consumer within 30 (thirty)days from the date of service. The Licensee may extend the last date of payment of the assessed amount or allow the payment in installments subject to payment of interest on the unpaid amount for the extended period beyond 30 (thirty) days at the rate of 16 (sixteen) percent per annum compounded every6(six)months.
(iii)The consumer shall accept the bill and deposit the assessed amount within the time lines and manner as per sub-regulation (5) (ii) or prefer an appeal against it before the Appellate Authority in accordance with the Act and the Regulations."
(underlined for emphasis) After going through the above-mentioned Regulation, it is clear that Assessing Officer was under a mandate to issue notice as mentioned in Regulation 58(1)(ii) of DERC Supply Court, 2017. It was also a mandate that Assessing Officer was supposed to give personal hearing to the consumer as per Regulation 58(3) of DERC Supply Court, 2017.
20. From the above-mentioned, it is clear that BSES/Assessing Officer was supposed to give notice as well as give personal hearing to the consumer before passing the speaking order. Applying the same to the factual matrix of the present case, it is observed that the Assessing Officer who passed the speaking order came as PW-7 and in his cross-examination he admitted that no notice has been issued nor any personal hearing has been given to the accused before passing the speaking order. The relevant para of cross-examination of PW-7 is quoted here as Ct. Case No. 1197 of 2021 BRPL Vs. Razi Ahmed Page No. 17 of 19 under:
"Q. Does speaking order make any mention of issuance of any notice/show cause notice to the accused to join the proceedings before you?
A. No. Q. Can you state whether the accused who was given opportunity of being heard while or before passing the speaking order?
A. No. Q. Can you state whether the accused was given any notice either by post or through SMS to join the proceedings before you while or before passing the speaking order? A. No."
From the above-mentioned, it is clear that admittedly notice has not been served upon the accused before passing the speaking order. Nor any personal hearing has been given. It appears that speaking order has been passed in a routine manner. It is also pertinent to mention here that the speaking order was not filed alongwith the complaint and after recording of the statement of accused u/s 313 of Cr.P.C complainant preferred an application u/s 311 Cr.P.C to produce Assessing Officer as witness and to exhibit speaking order.
21. The testing of impugned meter has been done without giving notice or intimation to the accused. The speaking order has been passed without giving notice or personal hearing to the accused. Even the speaking order Ex.PW7/B, is just the theoretical reproduction of lab report. The impugned theft bill has been prepared on the basis of lab report and speaking order Ex. PW1/A and Ex.PW7/B respectively. The court is of the view that the impugned theft bill has been prepared in a routine manner. The court has perused the consumption pattern of old meter as Ct. Case No. 1197 of 2021 BRPL Vs. Razi Ahmed Page No. 18 of 19 well as new meter and it is observed that the units are almost same. It appears that the connected load has been calculated without any basis. Otherwise, electricity bill after installation of new electricity meter would have been more than earlier bills which is not the case. So even the consumption pattern does not show anything to substantiate allegation raised by complainant.
22. In view of the above-mentioned, the court is of the view that the complainant has miserably failed to even give a hint that accused has committed the alleged theft as alleged through the present complaint. As the complainant has failed to prove the impugned theft, no question arises of presumption as provided under Section 135 of Electricity Act.
23. Accordingly, accused Razi Ahmed, S/o Sh. Amir Ahmad is acquitted of offence punishable under sections 135/138 of Electricity Act, 2003.
24. Accused has already furnished personal bond and surety bond in terms of Section 437-A Cr.P.C. The same have already been accepted and shall remain in force for a period of six months from today.
25. File be consigned to Record Room.
Digitally signedPronounced in the open court on this VINOD by VINOD KUMAR MEENA 24th December, 2022 KUMAR Date:
MEENA 12:38:26 +0530 2022.12.24 (VINOD KUMAR MEENA) ASJ: Special Electricity Court South West District, Dwarka Courts New Delhi Ct. Case No. 1197 of 2021 BRPL Vs. Razi Ahmed Page No. 19 of 19