Delhi District Court
Through vs . on 29 October, 2018
IN THE COURT OF MS REKHA
ADDITIONAL SESSIONS JUDGE, (SPECIAL COURT)
ELECTRICITY, CENTRAL, TIS HAZARI COURT, DELHI
CC No. 619/10
New case No. 326640/16
Under Section 135 & 138 of the Electricity Act, 2003
North Delhi Power Limited,
Regd. Office at
Grid Sub Station Building,
Hudson Lines, Kingsway Camp,
Delhi110009
Also at:
EAC, HRDI Building,
Sector3,Rohini, Delhi85
Through
Sh. Ashok Kumar Gupta
Technical Manager of the company ......Complainant
Vs.
Hardeep Singh
S/o Sh. Harpal Singh,
10448, Bagichi Peerji,
Backside Railway Station,
Old Subzi Mandi, Delhi ..............Accused
Date of Institution : 06.07.2010
Date of Judgment : 29.10.2018
Final Order : Acquitted.
NDPL Vs. Hardeep Singh CC NO. 619/10 page 1
JUDGMENT
1.The complainant company i.e. North Delhi Power Ltd. (in short 'NDPL') has filed the present complaint case Under Section 135, 138 and 154 of the Electricity Act 2003, (hereinafter referred as 'Act') against the accused praying that accused be summoned, tried and punished as per law and for determining the civil liability of the accused.
2. The brief facts in narrow compass, relevant and necessary for the disposal of the present case are that present complaint was filed by the complainant company acting through Technical ManagerSh. Ashok Kumar who is authorized to represent the complainant company vide the Power of Attorney dated 20.09.2004. It is also stated that late Harphool Singhthe grandfather of the accusedHardeep Singh was the registered consumer of electricity connection 35400033850 (hereinafter referred as the subject connection) installed at site No.10448, NDPL Vs. Hardeep Singh CC NO. 619/10 page 2 Baghichi Peerji, Backside of Railway Station, Old Sabzi Mandi, Delhi110007 (hereinafter referred as subject property). It is also stated that on 24.07.2009, an inspection/raid was carried out at subject property by the inspection team of the complainant company which consisted of Sh. M.K. KapoorManagerCEG and Sh. HansrajExecutiveCEG. At the time of inspection, the accused was user of subject connection and found indulged in dishonest abstraction of energy (in short DAE). Inspection team observed following irregularities at the time of inspection:
All meter box seals found missing. Meter terminal seals found missing. Load seal (left side) found tampered & not disturbed. Working of meter found 57% slow as per accucheck result. Meter was checked in the presence of Sh. Jaswant Singh relative of user Hardeep. Meter half seal (left side) found tampered. Data was downloaded successfully. Paper seal NO. 97675 &97674 pasted on meter box. Paperseal NO. 97676 pasted on the meter to main the status of half seal. The total connected load was found NDPL Vs. Hardeep Singh CC NO. 619/10 page 3 41.16 KW against sanctioned load of 12.00 KW. It is also stated that inspection team prepared inspection report dated 24.07.2009 at site and also prepared Action Report dated 24.07.2009. It is also stated that show cause notice dated 24.07.2009 also prepared at site and same was delivered to representative of the accused namely Sh. Jaswant Singh. It is also stated that a Data Analyst Report prepared on 19.08.2009 alongwith data downloaded of subject connection from meter No. 03103506 (hereinafter referred subject meter). It is also stated that the necessary photographs were also taken at the time of the said inspection by photographer of M/s Shanti Studio at the subject property. It is also stated that another show cause notice dated 22.09.2009 served upon the accused Hardeep Singh (by hand) alongwith copies of Inspection Report, Show Cause notice dated 24.07.2009 and data with data analysis report where another opportunity for personal hearing was granted to the accused for 01.10.2009 but the accused did not avail this opportunity also and the designated officer of the complainant NDPL Vs. Hardeep Singh CC NO. 619/10 page 4 company after considering the all facts and documents on record passed a speaking order dated 28.01.2010 (dispatched to the accused on 29.01.2010) establishing thereby DAE on part of the accused.
Accordingly, on the basis of inspection dated 24.07.2009, the complainant company raised the final bill dated 29.01.2010 for a sum of Rs. 10,55,601/ and same was duly served upon the accused but the accused refused and neglected to pay the same. In given fact and circumstances of the case, complainant company has filed the present complaint case against the accused.
3. The complainant company led the presummoning evidence. Vide order dt. 06.10.2010, accused had been summoned.
It is also to note here that vide order dated 05.08.2011, notice U/s 251 Cr.P.C. had been served upon the accused for the offence punishable u/s 135, 138 and 151 of the Electricity Act, 2003 against the accused to which accused pleaded not guilty and claimed trial.
4. In this case, the complainant company has examined only three witnesses, so as to prove its case namely PW01Sh. S.K. Garg, PW2Sh. Kapil Kumar and PW03Sh. M.K.Kapoor.
5. Sh. S.K. Garg examined himself as PW1 and as per his testimony, his testimony is based on the record allegedly made available to him and he was power of attorney holder of the complainant company and photocopy of the same is MarkA. He also testified that at the time of inspection by the inspecting team NDPL Vs. Hardeep Singh CC NO. 619/10 page 5 membersSh. M.K. Kapoor and Sh. HansrajExecutive CEG i.e. on 24.07.2009, accused was found user of the subject connection installed at subject premises. On the basis of irregularities and abnormalities found at the time of inspection, inspection team prepared an inspection report, action report and a show cause notice dated 24.07.2009 giving an opportunity of personal hearing to accused on 27.07.2009 which was not availed by accused. On the basis of aboveinspection, final assessment theft bill already Ex. CW1/6 dated 29.01.2010 for a sum of Rs. 10,55,601/ was raised which was duly served upon the accused but accused did not pay the same. He also testified that Harpal Singh was residing at abovesaid address and relied upon the printout of electrol roll i.e. already Ex. CW1/7.
06. PW02Sh. Kapil Kumar testified that he was working as authorized officer and posted at Enforcement Assessment Cell and processed the case in the office after receiving all documents of inspection in the office. Personal hearing sheet dated 27.07.2009 against show cause notice dated 24.07.2009 which was not attended by accused was already Ex. CW1/2A which bear his signature at point A. Thereafter, another show cause notice was issued by him on 22.09.2009 which was served through byhand upon accused was NDPL Vs. Hardeep Singh CC NO. 619/10 page 6 already Ex. CW1/3 which bear his signature at point A and signature of accused bears at point B. Data analysis report was also prepared in the office by the data analysis team and same was already Ex. CW1/2 and copy of which was shared along data with the accused with show cause notice dated 22.09.2009. Consumption pattern was also analysized by him and consumption pattern analysis sheet was prepared to this effect and same was already Ex. CW1/4 which bears his signature at point A.After going through inspection report dated 24.07.2009, Action Report dated 24.07.2009 and show cause notice dated 24.07.2009 and all other related documents mentioned above were analyzed in the office by him, the Speaking Order was passed by him against the accused and case of DAE was established against him and a bill of Rs. 10,55,601/ already Ex. CW1/6 was raised. Speaking order was already EX. CW1/5 which bears his signature at point A.
07. PW03Sh. M.K. Kapoor testified that at the time of inspection, he was working as Manager, CEG Department, TPDDL. He was part of the raiding team members. He alongwith his team NDPL Vs. Hardeep Singh CC NO. 619/10 page 7 members inspected the premises bearing No. 10448, Bagichi Peerji on 24.07.2009.On the instruction of DGMMr. S.K. Dass, they visited the premises for segregation of retained meter. At the time of their visit on 24.07.2009 at the subject premises, they found that no retained meter was there. There, they were apprised by the person present at site that meter was removed by TPDDL. No document regarding removal of subject meter was shown to them. Electricity of installed meter was being found used for industrial purpose. Thereafter, he telephonically enquired from DGMS.K. Dass whether the meter installed at the subject premises had to be inspected or not. After receiving instruction from DGMS.K. Dass, for checking the installed meter, they checked the same. The box seal and terminal seal was found missing and half seals found tampered. Without disturbing the half seals, they checked the meter through acquacheck and meter found slow by 57%. Thereafter, they downloaded the data of the meter. Then, they pasted the paper seals on meter terminal and meter box. NDPL Vs. Hardeep Singh CC NO. 619/10 page 8 Thereafter, they prepared the inspection report at site and person present at site apprised them that the registered consumer of the meter was Harphool Singh and user was Hardeep Singh. Hardeep Singh was not present at the site at the time of inspection. Thereafter, they prepared inspection report, action report and show cause notice and copy of the inspection report and show cause notice were served at site upon Mr. Jaswant Singh. He received the same and also signed the same. Photographs of the inspection were also taken by Shanti Studio. After serving the reports, they left the inspected premises.
08). Thereafter, statement of accused U/s 313 Cr.PC had been recorded, in which accused has denied the allegations against him. Accused stated that he was innocent and he had not committed any alleged offence of meter tampering. He had been falsely implicated in the present case. No inspection was carried out by the compainant and no meter NDPL Vs. Hardeep Singh CC NO. 619/10 page 9 was seized by them. He also did not know the whereabout of the registered consumer of the meter in question and whether it was installed or not. He chose not to lead DE.
09). I have heard the arguments of Ld. Counsels for the parties, perused the material available on record as well as the 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 Post.
NDPL Vs. Hardeep Singh CC NO. 619/10 page 10
It is to note here that as per the testimony of PW 03Sh. M.K. Kapoor, the person present at the site apprised them that the registered consumer of the meter was Harphool Singh and user was Hardeep Singh. Hardeep Singh was not present at the site at the time of inspection and they prepared inspection report, action report and show cause notice and copy of the inspection report and show cause notice were served at site upon Mr. Jaswant Singh.
It is to note here that when the statement of accused was recorded U/s 313 Cr.P.C., he stated that no inspection was carried out by the complainant company and he also denied the allegation against him.
It is also to note here that no document has been proved on record that inspection report had been served upon the alleged Jaswant Singh. Here, view of the Court is that NDPL Vs. Hardeep Singh CC NO. 619/10 page 11 mere say is not sufficient that alleged inspection report was served upon alleged Jaswant Singh. It is very very relevant to pen down here that when the statement of accused U/s 313 Cr.P.C. was recorded, he denied that inspection was carried out at the subject property.
Hence, here view of the Court is that the complainant company failed to prove that the alleged inspection report was served upon the alleged Jaswant Singh.
It is also to note here that no document has been proved on record that the accused has been served with the inspection report through registered post.
Therefore, the inspection team has not complied with the abovesaid mandatory regulation which certainly goes against the complainant company.
The provision of Regulation 53 (ii) of Delhi Electricity Supply Code and Performance Standards Regulation, 2007, is reproduced as under:-
NDPL Vs. Hardeep Singh CC NO. 619/10 page 12
(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 PW-02-Sh. Kapil Kumar, personal hearing sheet dated 27.07.2009 against show cause notice dated 24.07.2009 which was not attended by accused was already Ex. CW1/2A which bears his signature at point A and thereafter another show cause notice was issued by him on 22.09.2009 which was served through by hand upon the accused which was already EX. CW1/3. It has also been testified by PW-02 that after going through inspection report dated 24.07.2009, Action Report dated 24.07.2009 and show cause notice dated 24.07.2009 and after analyzing all other documents, he passed the speaking order already Ex. CW1/5 against the accused.
NDPL Vs. Hardeep Singh CC NO. 619/10 page 13
It is worthwhile to mention here that during cross- examination, PW02 admitted that he had not visited personally at site to deliver the show cause notice Ex. CW1/3 to the accused and voluntarily said that report was returned to the office bearings signature of accused as it was sent for service by hand through special messenger on the signature of accused bears at point-B. It is relevant to pen down here that no alleged special messenger through whom the alleged show cause notice Ex. CW1/3 was allegedly got served upon the accused has been examined by the complainant company. Had, he examined, the accused would have definitely got an opportunity to cross-examine him.
So, here it is said that the complainant company failed to prove that Ex. CW1/3 was served upon the accused as stated.
It is also relevant to pen down here that PW-02 during cross- examination admitted that no show cause notice was served upon the accused through post.
In light of above discussion, view of the Court is that above-said speaking order is based only on records and no NDPL Vs. Hardeep Singh CC NO. 619/10 page 14 opportunity of being heard had been granted to accused before passing the alleged speaking order.
Furthermore, perusal of show cause notice Ex. CW1/3 shows that date of personal hearing was mentioned as 01.10.2009 and perusal of Ex. Speaking Order Ex. CW2/6 shows the date as 28.01.2010.
Here, view of the Court is that the alleged speaking order dated 28.01.2010 should have passed within three days from the date of personal hearing i.e. 01.10.2009 but same was passed on 28.01.2018 i.e. after the huge gap of approx. 03 months and 28 days. No reason assigned for the delay in passing the speaking order. Hence, the complainant company has not complied with the aforesaid regulation.
The provision of Regulation 52 (viii) of Delhi Electricity Supply Code and Performance Standards Regulation, 2007, is reproduced as under:-
(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 NDPL Vs. Hardeep Singh CC NO. 619/10 page 15 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.
As per the testimony of PW-03-Sh. M.K.Kapoor, after receiving instruction from DGMS.K. Dass for checking the installed meter, they checked the same. The box seal and terminal seal was found missing and half seals found tampered. Without disturbing the half seals, they checked the meter through acqua check and meter found slow by 57%. Thereafter, they downloaded the data of the meter. Then, they pasted the paper seals on meter terminal and meter box. Thereafter, they prepared the inspection report at site but PW-03 did not testify regarding sending the subject meter in the lab for testing. It is very very relevant to pen down here that during the cross-examination, PW-02-Sh. Kapil Kumar admitted that meter was not sent to any lab for testing and voluntarily said that there was NDPL Vs. Hardeep Singh CC NO. 619/10 page 16 no procedure at that time.
Admittedly, the subject meter was not sent to the any lab what to say of sending the same to NABL accredited laboratory for testing. Here, view of the Court in view of above- said provision is that the subject meter should have been sent to the lab for testing. So, there is no justification in saying of PW-02-Sh. Kapil Kumar that meter was not sent to any lab for testing as there was no procedure at that time. Further more, nothing proved on record that what prevented them from sending the subject meter in lab, in view of the aforesaid provisions. Hence, the complainant company has not complied with the aforesaid regulation which certainly goes against the case of the complainant company.
It is very relevant to pen down here that no case property had been shown to the PW03 who was allegedly member of the alleged inspection team. Here, view of the Court is that case property should have been shown to the NDPL Vs. Hardeep Singh CC NO. 619/10 page 17 witness. Nothing proved on record that what prevented the complainant company to produce the subject meter before the Court and shown to the witness. The fact that the case property had not been shown to PW04 also certainly goes against the case of the complainant company.
Here, view of the Court is that mere say is not sufficient that the box seal and terminal seal were found missing & half seals were found tampered and the meter was found slow. In other words, it is said that in the instant case, the complainant company has failed to show any tangible evidence of dishonest abstraction of energy (DAE) against the accused.
It is also to note here that as per the testimony of PW03Sh. M.K. Kapoor, photographs of the inspection were also taken by Shanti Studio. It is very relevant to pen down here that no alleged photographer from Shanti Studio who had allegedly done the photography has been examined by the NDPL Vs. Hardeep Singh CC NO. 619/10 page 18 complainant company in this case.
As per the complaint, the inspection team consisted of Sh.M.K. KapoorManagerCEG and Sh. HansrajExecutive CEG. On the other hand, as per the testimony of PW03-Sh. M.K. Kapoor, he alongwith his team members inspected the subject property but did not mention the name of the other team members. It is very relevant to pen down here that complainant company examined only one member out of alleged another member (as per complaint) or other members (as per testimony of PW-03) of alleged inspecting team. Had, the complainant company examined remaining other alleged member(s) of the alleged inspection team, the accused definitely would have got the opportunity to cross- examine him/them.
In this case, the inspection team has not joined the independent public persons during inspection. It is relevant to mention here that PWs did not testify that if any, efforts were made by the inspection team to join the public persons in the NDPL Vs. Hardeep Singh CC NO. 619/10 page 19 inspection. 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. Therefore, non joining of the public persons during inspection also goes against the complainant company.
So far as PW01Sh. S.K. Garg is concerned, he is the only formal witness as testified that he was deposing on the basis of records made available to him and during cross examination admitted that he had not personal knoweldge regarding the present case.
In view of abovediscussion, the complainant company has failed to prove the offence alleged against the accused Hardeep Singh beyond reasonable doubts in the present case. Thus, the accused namely Hardeep Singh is NDPL Vs. Hardeep Singh CC NO. 619/10 page 20 entitled for acquittal. Accordingly, accused person namely Hardeep Singh is acquitted for the offence punishable Under Section 135, 138 and 151 of the Electricity Act, 2003. Bail bond of the accused stands cancelled and his surety is also discharged. Amount, if any, deposited by the accused as a condition for bail or in pursuance to interim order of the court qua the theft assessment bill raised by the complainant company on the basis of alleged inspection dated 24.07.2009 be released by the complainant company after expiry of the period of appeal. It is to note here that bail bond U/s 437 (A) Cr.P.C. of accused has been furnished and accepted. File be consigned to record room after due compliance. Digitally signed by REKHA
REKHA Date: 2018.10.29
15:53:14 +0530
Announced in open court (Rekha )
on day of 29 October,2018 ASJ(Special Court)Electricity, th Central/Tis Hazari Courts, Delhi NDPL Vs. Hardeep Singh CC NO. 619/10 page 21