Delhi District Court
Cc No.325610 /16 Bses Ypl vs . Sabauddin Page 1 Of 30 on 13 December, 2021
IN THE COURT OF SH. ARUL VARMA, ADDL. SESSIONS
JUDGE/SPL. JUDGE, ELECTRICITY, COURT NO. 2,
CENTRAL, THC
CC No. 324143/16
P.S. Civil Lines
U/s 135 of The Electricity Act, 2003
B.S.E.S. YAMUNA POWER LTD.,
HAVING ITS REGISTERED OFFICE AT
SHAKTI KIRAN BUILDING, KARKARDOOMA,
DELHI THROUGH ITS AUTHORISED OFFICER
SH. JITENDER SHANKAR
Versus
1. Sabauddin (RC and User)
R/o A-310, Ground Floor, Amar Puri,
Nabi Karim, New Delhi-110055
Date of Institution : 06.09.2010
Date of reserving the Judgment : 04.12.2021
Date of Judgment : 13.12.2021
Sl. No. of the case CC No. 325610/16
Date of commission of offence 31.05.2010
CNR No. DLCT01-000340-2010
Name of the accused Sabauddin
Name of the complainant BSES Yamuna Power Limited
Offences complained of 135, 138 and 151 of
Electricity Act, 2003
CC No.325610 /16 BSES YPL Vs. Sabauddin Page 1 of 30
Digitally
signed by
ARUL
ARUL VARMA
VARMA Date:
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Plea of accused Not Guilty
Final order Acquitted
Date of such order 13.12.2021
JUDGMENT
FACTS IN BRIEF / CASE SET UP BY THE COMPLAINANT
1. The facts, as alleged by the complainant, are hereby succinctly recapitulated: It was alleged by the complainant that on 31.05.2010 at about 11:50 hours officials of BSES YPL inspected the premises of accused i.e.A-310, GF, Amarpuri, Nabi Karim, Paharganj, New Delhi wherein accused was found indulging in dishonest abstraction of energy for domestic as well as non domestic purpose to the tune of 10.000 KW (8.690 K under non domestic category + 1.310 KW under domestic category). It was observed by the inspecting team that date and time meter and MD history data was found disturbed due to application of ESD/HF coil. Therefore, the present case came to be filed.
PRE-SUMMONING EVIDENCE
Digitally
signed by
ARUL
ARUL VARMA
VARMA Date:
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2. In pre-summoning evidence complainant filed evidence by way of affidavits of Sh. Rajeev Ranjan, AR of the complainant and Sh. H.C. Sharma, Sr. Manager of the complainant, who examined themselves as CW-1 and CW-2 respectively. After closure of pre-summoning evidence, accused was summoned.
NOTICE FRAMED QUA THE ACCUSED
3. Subsequent to compliance of Section 207 CrPC, notice was framed qua the accused on 02.08.2011 notifying him that trial would be conducted against him under Section 135, 138 & 151 of The Electricity Act, 2003, to which accused entered a plea of not being guilty.
EVIDENCE LED BY COMPLAINANT
4. In the trial, the complainant in support of its case, examined five witnesses, the succinct testimonies whereof are as follows:
(a) PW-1 Sh. Rajeev Ranjan, AR of the complainant proved POA Ex.CW1/1 dated 29.08.2006 issued by CEO Sh.
Arun Kanchan for institution, signing, verifying and representing the complainant company. He also proved CC No.325610 /16 BSES YPL Vs. Sabauddin Page 3 of 30 Digitally signed by ARUL ARUL VARMA Date:
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complaint Ex.CW1/2, and averred that on the basis of inspection report and load report, the theft bill for an amount of Rs.1,99,528/- Ex. CW2/10 was prepared.
(b) PW-2 Sh. S.C. Sharma, Sr. Manager, BSES YPL deposed that on 31.05.2010, he was posted at Gandhi Market Enforcement Office as Sr. Manager. On that day, at about 11:50 hours, on reference of meter testing lab report dated 01.05.2010, he alongwith Sh.Deepak Sharma, DET and Sh. Devender Singh, Lineman, Sh. Sanjeev Sharma, Lineman had inspected the premises bearing no. A-310, Ground Floor, Amarpuri, Nabi Karim, Delhi. There, they found that two meters were installed at the site and recorded load was running on reference connection meter through change over switch. The other meter was running on no load. On his instructions, the electronic meter bearing no. 14072489 was seized and sealed in a gunny bag for the evidence purpose. The seizure memo Ex. CW2/4 was prepared. He also prepared inspection report Ex. CW2/1 at the site. Connected load was prepared by Sh. Deepak Sharma, which is Ex. CW2/2 and found connected load to the tune of 8.690 for NX CC No.325610 /16 BSES YPL Vs. Sabauddin Page 4 of 30 Digitally signed by ARUL ARUL VARMA VARMA Date:
2021.12.13 17:38:38 +0530 purpose + 1.31 KW for DX. Meter detail got prepared by Sh.
Deepak Sharma with signatures of other raiding team members. He mentioned the name of Sabaduddin in his inspection report being registered consumer of defective meter bearing no. 14072489. After preparation of entire inspection report in the presence of Munna, representative of the accused, they offered the same to the representative to sign the same who refused to sign the same and did not allow them to paste the same. They also took photographs to the possible extent which is Ex. CW2/8 and true copy of CD is Ex. CW2/9. After completion of entire inspection work when they returned to their office, they handed over the inspection report to the competent authority and case property to the store incharge to take action as per law. The witness identified the case property i.e., carbon copy of seizure memo dated 31.05.2010 Ex.CW2/4 and meter bearing no.
14072489 Ex.P1 in the Court.
(c) PW-3 Sh. Munish Nagpal, Sr. Manager, BYPL Delhi deposed that on 15.07.2010, he was posted as Assessing Officer in the complainant company. In this matter a second CC No.325610 /16 BSES YPL Vs. Sabauddin Page 5 of 30 Digitally signed by ARUL ARUL VARMA Date:
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and final show cause notice was issued by him to the accused to appear before him on 09.07.2010 at 10 a.m. The said show cause notice is Ex. CW2/6. The consumer did not attend the personal hearing. On the basis of entire inspection report, load report, meter detail report and consumption of the above-said consumer, he passed a detailed speaking order Ex.
CW2/7 dated 15.07.2010. After examining the entire document, he came to the conclusion that present matter falls in the category of DAE(Dishonest Abstraction of Energy) and he also instructed the department to raise the bill as per the connected load found in the premises at the time of inspection.
(d) PW-4 Sh. Tushar Sharma, deposed that on 04.02.2010, the meter was brought to him for test. On 01.05.2010, they tested the meter. During the testing, they found that as per data, ESD/HF coil was found applied on meter. Thereafter, they prepared the lab report Ex. CW2/5. He identified the meter Ex.P-1 in the Court, and carbon copy of seizure memo Digitally Ex.P-2. signed by ARUL ARUL VARMA VARMA Date:
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(e) PW-5 Sh. Jitender Shankar, GM Legal & Enforcement, produced the original record of the accused Sabhauddin's electricity connection in question. He deposed that accused had applied for new connection vide application No. N113008070909 on 10.07.2008 for 1 KW, non-domestic purpose. The application alongwith other necessary documents were marked as Ex.PW5/A (colly 12 pages). On the basis of documents, on 01.08.2008 electricity meter for non-domestic purpose was installed at the premises bearing no. A-310, GF, Nabi Karim, Delhi.
STATEMENT OF ACCUSED
5. After complainant evidence was closed, statement of accused was recorded under section 313 CrPC on 06.03.2021 in which he denied the receipt of any notice from the complainant company, and remonstrated that he became aware of the present case only after receipt of summons issued by this Court. He further attributed foisting of the case upon him on unscrupulous activities of BSES officials viz. asking for bribes & threatening him. He also averred that he CC No.325610 /16 BSES YPL Vs. Sabauddin Page 7 of 30 Digitally signed by ARUL ARUL VARMA VARMA Date:
2021.12.13 17:38:58 +0530 had made a report to the police qua such misconduct.
ARGUMENTS OF LD. COUNSEL FOR THE COMPLAINANT AND LD. DEFENCE COUNSEL
6. Sh. Anil Bhasin, Ld. Counsel representing the complainant, vociferously contended that the prosecution has proved the case against the accused beyond reasonable doubt. It was contended that the complainant witnesses fully supported the version of the complainant's case. It was submitted that accused is admittedly a registered consumer, and also a user of the premises in question. Thus, it was contended that the identity of the accused, and his connection with the premises is not disputed. It was further submitted that electricity bill Ex.DW-1/A proves the factum of installation of electricity meter no. 14072489 in the premises in question. It was submitted by Ld. counsel for complainant that said meter was seized on 04.02.2010, and tested in the BYPL Lab on 1.05.2010. Attention of the Court was invited to the lab report Ex. CW2/5 to contend that the meter was tampered in as much as the date and time and MD history was disturbed due to application of ESD (Electro Static discharge)/HF CC No.325610 /16 BSES YPL Vs. Sabauddin Page 8 of 30 Digitally signed by ARUL ARUL VARMA VARMA Date:
2021.12.13 17:39:04 +0530 (High frequency) coil. Ld. counsel for complainant submitted that PW-4 Tushar Sharma proved the lab report Ex. CW2/5.
It was further contended that prosecution witnesses cogently established tampering of the meter and their testimonies remain unchallenged. Reliance was placed upon NDPL Vs. Bhasin Motors LPA No. 1082/2007 & CM 9601/2007 passed by Hon'ble Delhi HC to contend that onus is on the respondent/accused to explain how meter sealed got tampered. Reliance was also placed on Narinder Aggarwal v BSES Rajdhani Power Ltd. 2011 SCC OnLine Del 1395 to contend that BYPL Lab is one accredited by NABL, and thus veracity of the lab report cannot be doubted upon. Reliance was also placed on Punjab State Electricity Board & Anr. V Ashwani Kumar (2010) 7 SCC 569 to highlight the proposition that presumption is in favour of inspection report and other documents, and that there was specific onus upon the consumer to rebut, by leading proper and cogent evidence, that the report prepared by the officers of the complainant company were not correct.
7. Per contra, Ld. Counsel for the accused submitted CC No.325610 /16 BSES YPL Vs. Sabauddin Page 9 of 30 Digitally signed by ARUL ARUL VARMA Date:
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voluminous written arguments gist whereof is as under :-
* The Lab Report Ex CW2/5 was prepared by the complainant company in their own lab, without the presence of the accused, and thus the said document, being unworthy of credence, ought to be inadmissible. Since it was prepared in the absence of the accused, the complainant ought to have proved its case beyond reasonable doubt.
* Speaking order Ex. PW1/7 becomes invalid arbitrary, and against the principles of natural justice as complainant could not prove the service of show cause notices at the time of testing of the meter.
* Certificate of Incorporation by the Registrar of Companies has not been produced or has not exhibited in the Court.
* PW-1 Rajeev Ranjan did not turn up for cross-examination, and as such documents exhibited by PW-1 shall be inadmissible in evidence.
* The seizure memo dated 31.05.2010 i.e., Ex. CW2/4 and the lab report Ex. CW2/F are contrary to each other.
* Identity of Munna, the alleged representative of the accused was not established by the complainant be so.
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Date:
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* The premises where the inspection was carried out was a
thickly populated area, and it is strange that no public persons were joined.
* There is no certificate under Section 65 B of Indian Evidence Act on record, and even a videographer was not examined.
8. After hearing contentions of both sides, the issue that arises for determination is : -
Sr. No. Issue for Determination Decision Thereon
1. Whether the accused committed theft of Negative electricity, punishable u/s 135, 138 & 151 of The Electricity Act, 2003?
STATEMENT OF REASONS FOR THE DECISION I. STATUTORY FRAMEWORK
9. Before adjudicating upon rival contentions, it would be imperative to advert to apposite statutory provisions. The relevant Statutes comprise of an Act as well as Regulations. The applicable Act, as is apparent, is the Electricity Act,2003(hereinafter referred to as the 'Act'). As far as the CC No.325610 /16 BSES YPL Vs. Sabauddin Page 11 of 30 Digitally signed ARUL by ARUL VARMA VARMA Date: 2021.12.13 17:39:26 +0530 Regulations are concerned, the extant one is the Delhi Electricity Supply Code & Performance Standard Regulations, 2007 (hereinafter referred to as 'Supply Code, 2007'). However, there is another Regulation viz. the Delhi Electricity Regulatory Commission (Performance Standards- Metering & Billing) Regulations, 2002 (hereinafter referred to as the 'DERC Regulations 2002'). This Court is conscious of the fact that the Regulations of 2002 stand repealed vide insertion of Section 71 of the Supply Code, 2007. However, reference to the said Regulations is imperative, as would be explicit upon a perusal of subsequent paragraphs of this order. Further, reliance by the complainant on NDPL vs Bhasin Motors (supra) where these Regulations of 2002 are an integral part of the ratio decidendi, warrants deliberation on the said Regulations.
II. PROOF OF ABSTRACTION OFENERGY
10. Out of the myriad submissions put forth by Ld Counsel for the accused, while seeking his exoneration, the pivotal one CC No.325610 /16 BSES YPL Vs. Sabauddin Page 12 of 30 Digitally signed by ARUL ARUL VARMA VARMA Date:
2021.12.13 17:39:34 +0530 relates to - the complainant conclusively establishing the factum of tampering of the meter by the accused herein. In other words, the onus lies on the complainant to conclusively prove that that it was the accused who indulged in dishonest abstraction of energy by tampering the meter in question.
Before embarking on this quest, it would be pertinent to peruse the following extracts of Jagdish Narayan v North Delhi Power Ltd. & Anr. 140 (2007) DLT 307:
"18. Since the respondents are seeking to make out a case of DAE, the provisions of the Act, the Rules, and the Regulations require to be first noticed. At the very outset, it must be noticed that under the Act there is no definition of Dishonest Abstraction of Energy. That is defined only in the Regulations. The concept is nevertheless traceable to Section 135 of the Act which read as under.."
11. The traceability of the concept becomes explicit upon a bare perusal of Section 135 of the Electricity Act, 2003, which is reproduced hereunder:-
135. Theft of electricity .- (1) Whoever, dishonestly -
(a) taps, makes or causes to be made any connection with overhead, underground or under water lines or cables, or service wires, or service facilities of a licensee or supplier, as the case may be; or
(b) tampers a meter, installs or uses a tampered meter, current reversing transformer, loop connection or any other device or method which interferes with accurate CC No.325610 /16 BSES YPL Vs. Sabauddin Page 13 of 30 Digitally signed by ARUL ARUL VARMA VARMA Date:
2021.12.13 17:39:40 +0530 or proper registration, calibration or metering of electric current or otherwise results in a manner whereby electricity is stolen or wasted; or
(c) damages or destroys an electric meter, apparatus, equipment, or wire or causes or allows any of them to be so damaged or destroyed as to interfere with the proper or accurate metering of electricity; or
(d) uses electricity through a tampered meter; or
(e) uses electricity for the purpose other than for which the usage of electricity was authorised, so as to abstract or consume or use electricity shall be punishable with imprisonment for a term which may extend to three years or with fine or with both.
(emphasis supplied)
12. Having thus connected the dots, it would be prudent to postulate that dishonest abstraction of energy is but a species of theft of electricity, as defined in Section 135 of the Act. It was essential to restate the position as this Court would refer to certain judgments pertaining to DAE or Dishonest Abstraction of Energy. These judgments viz. Jagdish Narayan (supra), Narinder Aggarwal (supra) Udham Singh v BSES Rajdhani Power Ltd. 136 (2007) DLT 500, J.K Steelomelt (P) Ltd. V BSES Rajdhani Power Ltd. 140 (2007) DLT 563 essentially lay down the proposition that mens rea or intention of the consumer to dishonestly abstract electricity must be proved conclusively to bring home the CC No.325610 /16 BSES YPL Vs. Sabauddin Page 14 of 30 Digitally signed by ARUL ARUL VARMA Date:
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charge of DAE.
13. However, before one delves on the categoric findings of these cases, it would be utmost significance to understand that these judgments were predicated on the DERC Regulations 2002, and thus the applicability thereof to the present case might be doubted. The doubts need not be harboured, and the same get dispelled if one compares relevant provisions of the DERC 2002 and the Supply Code, 2007, which are depicted in the table appended below:
S.NO DERC (PERFORMANCE DELHI ELECTRICITY STANDARDS-METERING & SUPPLY CODE & BILLING) REGULATIONS PERFORMANCE STANDARD 2002 REGULATIONS, 2007
1. Regulation 25(iv) Procedure for Regulation 52 (vi) Procedure for booking a case for pilferage of booking a case for Theft of energy Electricity No case for DAE shall be booked No case for theft shall be booked only on account of one seal on the only on account of seals on the meter missing or tampered or meter missing or tampered or breakage of glass window etc. breakage of glass window, unless CC No.325610 /16 BSES YPL Vs. Sabauddin Page 15 of 30 Digitally signed by ARUL ARUL VARMA Date:
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unless corroborated by corroborated by consumption
consumption pattern of consumer pattern of consumer and such other as per Regulation 26 (ii) given evidence as may be available.
below and such other evidence as may be available
14. It is quite discernible that the above provisions are pari materia to each other, and thus the ratio of the judgments referred above, albeit rendered under the earlier regime of 2002, would squarely apply to the present case.
15. To contend that onus was on the accused to explain how the meter got tampered, reliance was placed by Ld Counsel for the complainant on Bhasin Motors (supra), relevant extracts whereof are as hereunder:
"6. The seal of a meter can be tampered with only by intervention of a human being and not otherwise. Similarly, the seals cannot go missing of their own and are necessarily removed by a human being. Likewise, there can be no scratches on the dial unless an attempt is made to interfere with the functioning of the meter. Since as per Sub- Regulation 17(iv) the responsibility of keeping the meter under safe custody lie with the consumer and as per Regulation (vii) during any inspection or on consumer complaint or suo moto, the licensee is required to ensure that the meter is not tampered/bypassed, it was for the respondent to explain how the meter box seal got tampered, cover seal CC No.325610 /16 BSES YPL Vs. Sabauddin Page 16 of 30 Digitally signed by ARUL ARUL VARMA Date:
VARMA 2021.12.13 17:40:00 +0530 went missing and scratches came on the dial plate"
16. However, it would be pertinent to read the judgment in toto. The next paragraph succinctly lays down the law :
"7. In our view, if the seals and/or meter are found tampered and no plausible explanation for such an act is forthcoming from the consumer, that would be sufficient evidence to conclude dishonest abstraction of energy by the consumer in terms of Regulation 25(iii), provided tampering with the meter and/or seal is detected in the presence of the consumer or his representative and the details thereof are recorded in the report prepared at the spot in the presence of the consumer or his representative as the case may be."
17. In the present case, it cannot be said that the accused did not put forth a plausible explanation. A perusal of his statement made under Section 313 CrPC coupled with the evidence led in his defence leads to the inference that the meter was replaced at his behest .Moreover, the detection of tampering of the meter was not done in the presence of the accused, as no show cause notice was served upon him as is pellucid from subsequent paragraphs of this judgment.
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ARUL ARUL VARMA
Date:
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18. Now, it would be useful to peruse the following extracts of Udham Singh's case (supra):
"19. A harmonious reading of all the provisions indicates that an inspection should precede assessment that the consumer has indulged in DAE. The licensee is obliged to follow principles of natural justice, and grant reasonable hearing [Section 126(3) and Regulation 25(viii)]. Mere irregularity in meter seals, or breakage of glass, etc. do not authorize the licensee to issue show- cause notice; the assessing officer has to observe the consumption pattern, before the personal healing is granted to the consumer [Regulation 25(iv) read with Regulation 26(H)]. The definition also envisons some collateral evidence of such objectionable behaviour; it enacts that DAE means--
"....abstraction of electrical energy where accessibility to the internal mechanism of the metering equipment and some collateral evidence is found to support the conclusion that the meter has been caused to record less energy than actually passing through it."(Emphasis supplied)
20. The necessity of recording existence of such materials (collateral evidence) is reinforced by Regulation 25(iii) which obliges the inspecting team to record if "conclusive evidence" substantiating the fact that energy was being dishonestly abstracted was found or not"
19. Moreover, in J.K Steelomelt (supra), it was held as thus:
"22. This Court has in a series of decisions in Udham Singh v. BSES Rajdhani Power Ltd., 136 (2007) DLT 500, Col. R.K. Nayyar v. BSES, 140 (2007) DLT 257 (Judgment dated 18.4.2007 in W.P. (C) No. 2904 of 2005) and Smt. Jagdish Narayan v. NDPL, 140 (2007) DLT 307 (Judgment dated 18.4.2007 in W.P. (C) No. 10287 of 2005, etc.) interpreted the provisions of Section 135 of the Act read CC No.325610 /16 BSES YPL Vs. Sabauddin Page 18 of 30 Digitally signed by ARUL ARUL VARMA Date:
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with the DERC Regulations. The relevant passages of the last mentioned judgment in Jagdish Narayan reads as under:
23. What is central to the definition of theft under Section 135 of the Act, which according to the respondent covers DAE as well is the element of 'dishonesty'. Therefore the mens rea or the intention of the consumer to dishonestly abstract electricity must be proved "conclusively" to bring home the charge of DAE. Therefore the requirement of "conclusive evidence" in terms of Regulation 25(iii) is consistent with the statutory mandate of Section 135(1). That can be established only by showing that the consumer was responsible for tampering the meter by some visible means. The external manifestations of tampering, as has been found in the inspections conducted in the present cases, can only raise a suspicion of DAE. That suspicion will have to be made good by some tangible evidence of physical means of tampering before the presumption can be drawn that it was the consumer who tampered the meter.
23. In reiteration of the above judgments, it is held that in order to establish DAE through conclusive evidence, it is incumbent on the respondent to show, not merely with the reference to the consumption pattern, but by some other tangible evidence that there has been the tampering with or access by the petitioner to the internal mechanism of the meter in a manner that would slow down the consumption. This could be, for instance, in the form of an accu check instrument being used to detect if the meter was recording lesser consumption than it should".
20. The leitmotif discernible from the abovesaid judgments is that suspicion of dishonest abstraction of energy will have to be made good by some tangible evidence thereof. As far as the allegation of tampering of the meter qua the accused in CC No.325610 /16 BSES YPL Vs. Sabauddin Page 19 of 30 Digitally signed by ARUL ARUL VARMA VARMA Date:
2021.12.13 17:40:33 +0530 the present matter is concerned, there are certain discrepancies in the version of the complainant which lead to the inference that the complainant has been unable to conclusively establish tampering of the meter by the accused.
PW4 Tushar Sharma was examined qua testing of the meter and he proved the Lab report Ex CW2/5.A perusal of lab report Ex CW 2/5 reveals that he was the 'Approver', whereas the 'tester' was one Sanjay Kumar, who was not examined as a witness. Be that as it may, PW 4 merely averred that as per data, ESD/HF coil was found applied on the meter. The witness has not gone beyond this statement.
There is no reasoning given as to how he arrived at the conclusion that an ESD/HF was applied on the meter. This fact assumes significance in light of the fact that a perusal of Lab Report would reveal that Meter LED ,LCD, Plastic Seals and Hologram Seals were found to be OK. It is also apparent that no external device substantiating the claim of the complainant has been seized. It is also not the case of the complainant that an accucheck instrument was deployed to detect whether the meter is recording lesser units. Further, no CC No.325610 /16 BSES YPL Vs. Sabauddin Page 20 of 30 Digitally signed by ARUL ARUL VARMA VARMA Date:
2021.12.13 17:40:44 +0530 document was placed on record to substantiate the claim of the complainant that MD history would occur only once in a month. Furthermore, as per Regulation 52(viii) the old meter shall be tested in a NABL accredited laboratory. Ld counsel for the complainant placed reliance on Narinder Aggarwal(supra) in this regard to contend that all BSES labs are NABL accredited. The reliance is misplaced, as the said verdict laid down that reference to a 'third party lab', as mentioned in Regulation 52(xii) of the Supply Code,2007, is to an NABL accredited lab only. Be that as it may, Regulation 52(viii) clarifies that the lab report must be accompanied with photographs/videography. This has not need so done in the present case. Lastly, identity of the alleged representative Munna has also not been cogently established by the complainant.
21. Significantly, in Bhasin motors (supra) as relied by Ld Counsel for the complainant, it was laid down in unequivocal terms that "the standard of proof required in a criminal trial is proof beyond reasonable doubt, whereas the standard of proof required in a civil action is preponderance of CC No.325610 /16 BSES YPL Vs. Sabauddin Page 21 of 30 Digitally signed by ARUL ARUL VARMA VARMA Date:
2021.12.13 17:40:51 +0530 probabilities." Thus, in the absence of strict proof of tampering, the benefit of doubt must enure in favour of the accused.
III. VIOLATION OF PRINCIPLES OF NATURAL JUSTICE: NO PROOF OF SERVICE OF INSPECTION REPORT
22. According to Regulation 52 (ix) of the Supply Code, 2007 the Inspection Report must be handed over to the consumer/his representative at site. Upon refusal by the consumer/representative to receive the same, a copy thereof is to be pasted at a conspicuous place in/outside the premises, and photographed. In the present case, the Inspection Report Ex CW2/1 contains an endorsement of refusal. In case of such an eventuality, the next step would have been to affix the Inspection Report at the premises. However, as per PW2, the representative of the accused namely Munna did not allow the Inspection Team to do so. Admittedly, the Inspection Team consisted of 4 members. This fact makes it difficult to believe the version of PW2 that one person did CC No.325610 /16 BSES YPL Vs. Sabauddin Page 22 of 30 Digitally signed by ARUL ARUL VARMA Date:
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not allow 4 others to affix the Report. Apart from a specious averment by PW2 in his examination in chief to this effect, no instance of physical or other kind of resistance was highlighted. Further, the Regulations mandated sending of the Inspection Report to the consumer via Registered Post. That mandate has also apparently been flouted, as no proof of service thereof has either been averred or placed on record. Significantly, proof of such refusal has not been evinced in the photographs ExCW2/8. In this context, it would be useful to peruse the following extracts of J.K Steelomelt (supra):
" 26. Nothing has been brought on record in the instant case to show that the respondent had in fact dispatched the inspection report dated 13.12.2004 to the petitioner by registered post or otherwise. That burden was on the respondent which it did not discharge. The mere fact that the speaking order contained a reference to an enforcement case dated 13.12.2004 without anything more can hardly be construed to be a reference to the inspection of that date. The photographs too do not show whether in fact the inspection report was prepared and given to the petitioner.
IV. VIOLATION OF PRINCIPLES OF NATURAL JUSTICE: NO PROOF OF SERVICE OF SHOW CAUSE NOTICES CC No.325610 /16 BSES YPL Vs. Sabauddin Page 23 of 30 Digitally signed by ARUL ARUL VARMA Date:
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23. Next, it was vociferously contended by Ld Counsel for the accused that the accused was not given an opportunity to witness the testing of the meter in the lab. It was argued that the lab report Ex CW2/5 should not be relied upon, as the same was prepared in the absence of the accused at the time of testing of the meter in the lab. The absence, as per Ld Counsel for the accused, is attributable to the complainant, for not sending the show cause notices.
24. As far as the legal position is concerned, it would be apt to peruse Regulation 52(x) of the Supply Code, 2007, which is reproduced hereunder:
"(x)After detailed examination of the evidence and the consumption pattern of the consumer, if the Licensee is convinced that a prima-facie case is made out for the abstraction, consumption or use of electricity dishonestly against the consumer, the Licensee shall, within seven days of inspection, serve on the consumer a seven days show cause notice giving reasons, as to why a case of theft should not be booked against such consumer giving full details for arriving at such decision and points on which reply to be submitted. 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.
xi Incase show cause notice is not served even after thirty days from date of inspection, the case of suspected theft shall be considered as dropped and no further action can be initiated against the consumer"
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25. Further, Regulation 68 of the Supply Code, 2007 lays down that any order/notice under the Electricity Act shall be deemed to be duly served by the Licensee if it is inter alia sent by Registered Post at the correct postal address of the addressee.
26. In the present case, it has been averred that not one, but two show causes notices have been issued to the accused. In this context, it would be germane to peruse the cross-examination of the Assessing Officer PW3 Munish Nagpal conducted on 11.05.2016:
"I am working in the BYPL since the year 2007. I have issued notice to the accused for personal hearing and the same was sent to the accused through speed post. The receipt of speed post is already exhibited as Ex CW2/11. It is incorrect to suggest that no notice was ever issued by me to the accused and the abovesaid receipt is also a forged one. It is incorrect to suggest that since no notice was issued, hence , accused could not appear for physical hearing.... The abovesaid notice was the second show-cause notice as issued by me. The first show cause notice was issued to the accused at the site, however, same was not issued by me."
27. The 'first' show cause notice as was allegedly sent by the complainant, is nowhere on record, nor is there any averment qua its contents, including the time withing which and place CC No.325610 /16 BSES YPL Vs. Sabauddin Page 25 of 30 Digitally signed by ARUL ARUL VARMA Date:
VARMA 2021.12.13
17:41:18
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whereat the accused had to respond to. The more astonishing fact is that the so called first show cause notice was issued at the site, on the very date of inspection. Now this seems contrary to the Regulation 52(x), which stipulates that a. the Licensee shall within 7 days of inspection, serve on the consumer a seven days show cause notice giving reasons, as to why a case of theft should not be booked against the consumer giving full details for arriving at such a decision and points on which reply to be submitted.
b. The notice shall be given after detailed examination of the evidence and the consumption pattern of the consumer.
28. The question remains- who gave the first show cause notice? None of the complainant's witnesses could testify qua this fact. Even PW3 Munsih Nagpal merely averred that the same was not sent by him. Thus, service of notice of first show cause notice has not been proved. As far as the second show cause notice is concerned, the same too falls short on statutory grounds. Ex CW2/6 which is purportedly the CC No.325610 /16 BSES YPL Vs. Sabauddin Page 26 of 30 Digitally signed by ARUL ARUL VARMA Date:
VARMA 2021.12.13
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Second show cause notice is silent on aspects mandated by Regulation 52(x) viz. reasons for booking a case of theft, full details for arriving at such a decision, and points on which reply must be submitted. The only recital in EX CW2/6 is "The impugned premise was inspected by Enforcement Department when existing meter on finding some prima facie deficiencies was removed..." Moreover, the date of sending the said second show cause notice has not been proved . Furthermore, EX CW2/6 mentions about a copy of Show Cause notice issued earlier but the same doesn't form a part of the record. Lastly, apart from a mere photocopy of a random slip, stuck on a photocopy of a 'List of Hearing Letter' marked as Ex CW2/4, there is nothing on record to substantiate the claim of the complainant that the show cause notice was duly sent to the accused. Even PW4 Tushar Sharma avowed during his cross-examination conducted on 22.02.2021 that in the case file there was no proof of notice sent to the accused to join meter testing proceedings.
29. The violation of the rudimentary principle of natural justice viz. audi alteram partem is writ large in the present matter.
CC No.325610 /16 BSES YPL Vs. Sabauddin Page 27 of 30
Digitally
signed by
ARUL
ARUL VARMA
VARMA Date:
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Recourse may be had to J.K Steelomelt (supra) wherein it was laid down as thus:
"25. In view of the above conclusion, the other submissions of the petitioner about it not being furnished with the copy of the inspection report dated 13.12.2004 along with the show cause notice issued prior to the passing of the speaking order need not be examined. However, it should be observed that the burden of showing the supply of relevant documents to the petitioner is definitely on the respondent. The endorsement on the inspection report dated 13.12.2004 shows that the consumer had refused to sign. However, this by itself does not settle the issue since this endorsement is by an official of the respondent. The respondent will then have to show that a copy of this report was dispatched to the petitioner by registered post or any other verifiable means. Without the supply of the documents upon which the respondent is relying to draw an inference adverse to the petitioner, there would be justification in the consumer claiming that there has been a violation of the principles of natural justice. In such cases, it will not be a valid defence for the respondent to contend that the petitioner should have asked for a copy of the report. If the petitioner in fact did not know that such a report existed then it is hardly surprising that it did ask for such a report. The decision of this Court in Harvinder Motors v. BSES Rajdhani Power Ltd. 135 (2006) DLT 198 also underscores the importance of complying with the principles, of natural justice."
30. In Harvinder Motors v BSES Rajdhani power Ltd. (2006) 135 DLT 198 the issue of scrupulous adherence to principles of natural justice was discussed in the following terms:
"12. I am not persuaded with the submission of counsel for BSES that no obligation exists on the part of the licensee to indicate the basis of the proposed action of DAE; and that CC No.325610 /16 BSES YPL Vs. Sabauddin Page 28 of 30 Digitally signed by ARUL ARUL VARMA VARMA Date:
2021.12.13 17:41:38 +0530 the action is legal if the notice states about the observations made in the inspection report. If such were the correct position, the need to put in Regulations 25(iv) and 26(ii) as safeguards, would be meaningless. The object of obliging the assessing authority to ensure that consumption pattern, corroborates the suspicion of unauthorised use/DAE, is a pre-condition for exercise of jurisdiction; if the consumption is more than 75% of the load, no action can be taken
14. One of the cardinal rules of fair play is that the person likely to face adverse consequences of an administrative or quasi-judicial order, has to be given notice, and adequate opportunity. Notice is not a ritualistic formality; the person requiring to show cause has to be precisely informed, may be briefly, the allegations upon which action is proposed.
This cardinal rule becomes critical, if the consequences are drastic; fair play becomes a casualty if the person called upon to answer the notice is unclear, or in the dark, on a fair reading of the document. Thus, precise and unambiguous facts or allegations have to be mentioned in the notice. (Ref. Food Corporation of India v. State, AIR 2001 SC 250; Canara Bank v. Debasish Das, AIR 2003 SC 2041)".
31. Thus, this Court is inclined to concur with the submissions of Ld Counsel for the accused that the case has been foisted upon the accused without giving him a fair hearing before a pre-litigation forum.
32. In view of the above serious infirmities in the case of the complainant, there is no need to further delve into the remaining contentions of the accused qua non joining of witnesses, proof of electronic evidence etc. CC No.325610 /16 BSES YPL Vs. Sabauddin Page 29 of 30 Digitally signed by ARUL ARUL VARMA VARMA Date:
2021.12.13 17:41:45 +0530 CONCLUSION
33. In view of the reasons hereinabove discussed in extenso, this Court is of the considered view that the complainant could not prove its case against the accused beyond reasonable doubt. Thus, accused Sabauddin is hereby acquitted u/s 135, 138 & 151 of the Electricity Act,2003 Digitally signed by ANNOUNCED IN THE ARUL ARUL VARMA OPEN COURT ON 13.12.2021 VARMA Date:
2021.12.13 17:41:52 +0530 (Arul Varma) ASJ/Special Judge, Electricity Court No.02, Central /THC CC No.325610 /16 BSES YPL Vs. Sabauddin Page 30 of 30