Delhi District Court
Through: Sh. C.B.Sharma vs . on 21 January, 2017
IN THE COURT OF SHRI LAL SINGH
ADDITIONAL SESSIONS JUDGE, SPECIAL COURT
(ELECTRICITY), TIS HAZARI COURT, DELHI
CC No.836/08
New case No. 325509/16
BSES Yamuna Power Ltd.,
Having its Registered office at:
Shakti Kiran Building, Karkardooma,
Delhi-110032
Through: Sh. C.B.Sharma
(Authorized Officer) ...........Complainant
Vs.
Mohd. Salim
R/o 7038, F/F, Nr. Neem Wala
Chowk, Kikar Wali Masjid, NPA
Ashok Bagarian Basti, Nabi Karim,
Pahar Ganj, Delhi. ............Accused
Date of Institution : 11.12.2008
Judgment reserved on : 19.01.2017
Date of Judgment : 21.01.2017
JUDGMENT
1). Brief facts of the case are that on 15.03.2008 at about 1:00 PM, an inspection was carried out at the premises bearing H.No. 7038, First Floor, Neem Wallan Chowk, Kikarwali Masjid, NPA, Bagarian Basti, Nabi Karim,Pahar Ganj, Delhi, in respect of meter no.23397107, by the joint inspection team of the complainant company. The inspection team of the complainant company was comprised of Sh. Gyaneshwar (Assistant Manager-Enf.), Sh. Vinay Kumar (JET), Sh. Chandresh Kumar (LM) and Sh. Manoj Kumar Khurmai (LM). The inspection was stated to be carried out in the presence of the accused. During the course of inspection one CC No. 836/08 BYPL Vs .Mohd. Salim Page 1 of 14 New case No.325509/16 meter bearing no.23397107 was found existing at the site of the premises. It is alleged that at the time of inspection, all the seals of meter bearing no. 23397107 was found tampered. Further, the meter in question was tested by standard accu-check instrument and same was found slow by 90.48 %. The meter in question was segregated at the site by the inspection team in the presence of accused. During the segregation of the meter, one illegal component found connected in PCB circuit inside the meter, which was stated to be the reason for slowness of the meter. It is alleged by the company that it was the deliberate attempt on the part of the accused to tamper with the recorded consumption. Thereafter, the supply was restored through new meter bearing no. 13905692 by MMG Department of the company. The tampered meter bearing no. 23397107 was seized vide seizure memo. During the inspection, necessary videography was also conducted by Sh. Anand from M/s Arora Photo Studio. The inspection team also prepared the inspection report, meter details report and connected load report and offered the same to the accused, however, the accused refused to accept the same. The total connected load at the time of inspection in the premises was found as 13.755 KW/NX/DX/DAE against the sanctioned load of 2.00 KW/NX. On the basis of inspection, show cause notice for Dishonest Abstraction of Energy was prepared at the site and offered to consumer/ representative at the site with the request to attend the personal hearing on 29.03.2008, however, accused/ representative of the accused refused to accept the same. Therefore, second and final show cause notice dated 03.04.2008 was issued by Manager, Enf-II, to the accused for attending the personal hearing on 15.07.2008 but the accused/ consumer neither attended the personal hearing nor filed any reply to the said show cause notices. Thereafter, on the basis of available material, the assessing officer of the complainant company had passed the speaking order dated 05.08.2008, thereby establishing the allegation of DAE against the accused. It is also stated that the consumption pattern was also examined and CC No. 836/08 BYPL Vs .Mohd. Salim Page 2 of 14 New case No.325509/16 average consumption as per computer module works out to 4.10 % which is much less than prescribed limit of DERC. The complainant company has also raised the theft assessment bill in the sum of Rs.2,50,514/- against the accused for the Dishonest Abstraction of Energy. Thus, complainant company has filed the present complaint case against the accused for the offence punishable u/s 135/138 of Electricity Act, 2003, with the prayer for determination of the civil liability u/s 154 (5) of Electricity Act, 2003.
2). Thereafter, the complainant company led the pre summoning evidence. Vide order dt. 31.01.2009, accused had been summoned to face the trial for the offence alleged against him. After that vide order dated 10.03.2010, notice u/s 251 Cr.P.C., had been framed against the accused for the offence punishable u/s 135/138/151 of Electricity Act, 2003, to which accused pleaded not guilty and claimed trial.
3). In this case, the complainant company has examined only four witnesses, so as to prove its case namely, PW1 Sh. Rajeev Ranjan (AR), PW2 Sh.Gyaneshwar Singh (DGM), PW3, Sh. A.R. Ansari (DGM) and PW4 Sh. Manoj Khurmai (DET).
4). Thereafter, statement u/s 313 Cr.P.C of accused had been recorded, in which accused has denied the allegations against him. Accused submitted that he is residing at H.No. 7039. Accused stated that H.No. 7038 (inspected premises), belongs to his elder brother and he has no concerned with the inspected premises. Accused also submitted that meter in question does not belongs to him and no inspection was carried out in his premises. Further, in his statement u/s 313 Cr.PC, accused submitted that the meter in question was not segregated in his presence and same was also not seized in his presence. Accused also submitted that no reports were prepared and further no videography was conducted in his presence and he has not received any show CC No. 836/08 BYPL Vs .Mohd. Salim Page 3 of 14 New case No.325509/16 cause notices and copy of speaking order. Accused submitted that he has not committed any alleged offence of electricity theft/DAE and he has been falsely implicated in the present case.
5) However, accused has not led the defence evidence so as to substantiate his contention as made by him in the statements u/s 313 Cr.P.C.
6). Arguments of Ld. Proxy Counsels for the parties heard.
7). Ms. Shruti Bhasin, Proxy Counsel for Counsel for the the complainant company submitted that the accused was indulging in meter tampering/DAE at the time inspection. She further submitted that during inspection all the seals of the meter were found tampered. She also argued that meter in question was tested by standard accu-check instrument at the site and it was found slow by 90.48%. Proxy counsel for the company also argued that meter was segregated at the site in the presence of accused and one illegal component was found connected in PCB circuit inside the meter and due to that meter was slow by 90.48%. She submitted that accused was registered consumer of meter in question. Proxy counsel for the complainant company submitted that the witnesses of the company have proved the offence alleged against the accused and thus, company has able to prove the allegation of DAE against the accused.
8). On the other hand, Sh. Vinod Prakash Sharma, proxy counsel for counsel for the accused submitted that the meter in question was not sent to the NABL accredited lab for testing. He further submitted that the inspection team was not authorized to segregate the meter at the site. He also submitted that show cause notices were also not served upon the accused and complainant company has failed to place on record any receipt etc., to prove the CC No. 836/08 BYPL Vs .Mohd. Salim Page 4 of 14 New case No.325509/16 service of show cause notices. Proxy counsel for the accused further submitted that in this case the electronic evidence has also not been proved. Proxy counsel for the accused submitted that complainant company has failed to prove the offence alleged against the accused.
9). I have considered the submissions of Ld. Proxy Counsels for the parties and also perused the evidence on record.
10). In the instant matter the complainant company has examined only four witnesses so as to prove its case. PW1, Sh. Rajeev Ranjan, (earlier AR of the complainant company) is a formal witness, who stated to the extent that the present complaint case Ex.CW1/B has been filed by Sh. C.B. Sharma, the then AR of the company.
Admittedly, PW1 was not the member of the inspection team. Thus, PW1 is a formal witness in this case.
11) In the instant matter, PW2 (Gyaneshwar Singh) and PW4 (Manoj Khurmai) are the material witnesses as they both were the members of inspection team, which inspected the premises on 15.03.2008.
PW2 deposed that at the time of inspection accused was consumer of the electricity supply at the premises through meter bearing no. 23397107. He further deposed that during inspection all the seals of the meter were found tampered and thereafter, they tested the meter through accu-check and found that meter was slow by 90.48%. PW2 also deposed that they segregated the meter in question at the site in the presence of accused and one illegal component was found connected in PCB circuit inside the meter which was the reason for slowness of the meter. PW2 stated that on his instructions, the lineman had removed the meter bearing no. 23397107 and thereafter, meter was seized vide seizure memo. PW2 stated that he prepared the CC No. 836/08 BYPL Vs .Mohd. Salim Page 5 of 14 New case No.325509/16 inspection report. As per PW2, meter detail report Ex.PW2/X and connected load report Ex.CW2/B were prepared by Sh. Vinay Kumar Gupta and total connected load was found as 13.755 KW domestic as well as commercial purpose. PW2 further deposed that Sh. Anand from M/s Arora Photo Studio had taken the videography of connected load and mode of theft and CD of the same was also prepared vide Ex.CW2/H. PW2 stated that show cause notice vide Ex.CW2/D was given to the accused at the site but accused refused to sign and also did not allow to paste the same as well as other reports. During trial PW2 has identified the case property/ meter bearing no. 23397107 vide Ex.P1.
PW4 Sh. Manoj Khurmai also deposed on the line of PW2. PW4 stated that during inspection, accused who was RC of the meter in question was present at the site and meter was found tampered and same was checked through accu-check instrument at the site and found slow by 90.48%. PW4 also stated that meter in question was segregated in the presence of accused and one illegal component, which was not the part of the meter, was found illegally connected in PCB circuit of the meter, which caused slowness of the meter. He also stated that meter in question was seized at the site. PW4 further stated that Sh. Anand, videographer from M/s Arora Photo Studio has conducted the videography at the time of inspection and connected load was found as 13.755 KW domestic as well as commercial purpose. He stated that inspection report Ex.CW2/A, load report Ex.CW2/B and seizure memo Ex.CW2/C were prepared at the site and reports were offered to the accused but he refused to accept the same. During trial PW4 identified the meter in question vide Ex.P1 and also identified illegal component vide Ex.P2. PW4 also identified the accused during trial.
In the instant matter, inspection was carried out at premises bearing no. 7038, FF, Nabi Karim Wallan Chowk, Keekarwali Masjid, Bagarian Basti, Delhi. PW2 and PW4 also CC No. 836/08 BYPL Vs .Mohd. Salim Page 6 of 14 New case No.325509/16 stated in their testimonies that inspection was carried out in the abovesaid premises. However, accused in his statement u/s 313 Cr.PC stated that he never resided at the H.No. 7038 and he was residing in H. No. 7039. Accused further submitted that H. NO. 7038 belongs to his elder brother and further the meter in question also does not belongs to him and no inspection was carried out in his premises. But so as to substantiate his contention as submitted by accused in his statement u/s 313 Cr.PC, accused has not led any defence evidence and also not produce or placed on record any material documents which would suggest that the inspected premises bearing H. No. 7038 does not belongs to the accused and accused was having no concerned with the said premises. Moreover, accused also failed to bring material on record that the meter in question also does not pertains to him. It was incumbent upon the accused to lead defence evidence so as to substantiate his contention as submitted by him in his statement u/s 313 Cr.PC. As the accused failed to bring any material on record that the premises in question does not belongs to him, hence, there is no substance in the contention of the accused that the premises as well as meter in question does not belongs to the accused. Thus, accused has failed to establish that inspected premises in question as well as meter in question does not belongs to him. The complainant company has successfully established that the inspected premises as well as meter in question pertains to accused.
12) It is the allegation against the accused that during the inspection, meter in question was found tampered as one illegal component was found connected in PCB circuit inside the meter. PW2 and PW4, who were members of the inspection team stated that at the time of inspection, they found meter in question as tampered as all the seals were found tampered. PW2 and PW4 also stated that they segregated the meter at the site in the presence of consumer/ accused and one illegal component was CC No. 836/08 BYPL Vs .Mohd. Salim Page 7 of 14 New case No.325509/16 found connected in PCB circuit of the meter. However, during trial alleged illegal component were not shown to the PW2 (Sh. Gyaneshwar Singh). During trial, PW4 had pointed towards the illegal component which was fixed in the meter vide Ex.P2.
It is the contention of the counsel for the accused that the inspection team was not authorized to segregate the meter in question at the site. Perusal of the file shows that the complainant company has not placed on record any document or material that the inspection team was authorized to segregate the meter in question at the site. Otherwise also, in the cases of suspected theft of electricity, the tampered meter is required to be sent to the lab for testing so as to establish the tampering.
The provision of Regulation 52 (iv) & (viii) of Delhi Electricity Supply Code and Performance Standards Regulation, 2007, is reproduced as under:-
(iv) The Authorized Officer shall prepare a report giving details such as connected load,condition of meter seals, working of meter and mention any irregularity noticed (such as tampered meter, current reversing transformer, artificial means adopted for theft of energy) as per format given in Annexe XI or as approved by the Commission from time to time.
(viii) In case of suspected theft, the Authorized Officer shall remove the old meter under a seizure memo and seal it in the presenceof consumer/his representative.
The Licensee shall continue the supply to the consumer with a new meter. The old meter shall be tested in a NABL accredited laboratory and the laboratory shall give a test report, in writing, which alongwith photographs/ videographs shall constitute evidence thereof. The list of NABL accredited laboratories shall be notified by the commission. The Authorized Officer shall record reasons to suspect theft in the premises in his report.
CC No. 836/08 BYPL Vs .Mohd. Salim Page 8 of 14 New case No.325509/16In the instant matter, admittedly, the meter in question was not tested in the lab as the same has not been sent for testing in the laboratory. The meter in question should have been examined in the NABL accredited lab, so as to establish the alleged tampering with the meter. The complainant company has failed to show as to what prevented to the inspection team from sending the meter in the NABL accredited laboratory for testing. Otherwise also, the allegation of complainant company against the accused is that accused had inserted/ connected one illegal component in PCB circuit of the meter and thereby tampered the meter and which caused the slowness of the meter. However, so as to substantiate the allegation against the accused, the meter in question should have been sent to the NABL accredited laboratory. Whether the accused has any role in alleged insertion/ connection of alleged one illegal component in PCB circuit of the meter, would have been established, if the meter in question would have been sent to NABL accredited lab for testing. Thus, by not sending the meter in question in the lab for testing, the inspection team has contravened the abovesaid mandatory regulation and same proved fatal to the case of the company.
13) In the present case, the videography was stated to be conducted at the site during inspection, showing the irregularities committed by the accused in tampering the meter. PW2 and PW4, who were members of the inspection team stated that Sh. Anand from M/s Arora Photo Studio, had conducted videography at the site vide CD containing videography Ex.CW2/H. However, the videographer (Sh. Anand), who had conducted the videography has also not been examined by the company so as to prove the videography Ex.CW2/H. The videographer/ photographer, ought to have been examined so as to prove the printouts of the photographs as well as CD as placed on record, as he would have been the best person to prove the photography/ videography.
CC No. 836/08 BYPL Vs .Mohd. Salim Page 9 of 14 New case No.325509/16Moreover, the videography Ex.CW2/H has also not been proved by the complainant company in accordance with law as the company has not filed the mandatory requisite certificate u/s 65B of the Indian Evidence Act, so as to prove the videography. Thus, in the absence of mandatory certificate u/s 65B of the Indian Evidence Act, the videography/CD Ex.CW2/H has no much help for the case of the complainant company. Thus, the complainant company has failed to prove the electronic evidence in accordance with law.
14) The inspection team was comprised of Sh.Gyaneshwar (PW2), Sh. Vinay Kumar (JET), Sh. Chandresh Kumar (LM) and Sh. Manoj Khurmai (PW4). Perusal of the inspection report Ex.CW2/A, connected load report Ex.CW2/B and meter details report Ex.CW2/X, shows that the abovesaid reports were signed by only two members of the inspection team namely Sh. Gyaneshwar Singh (PW2) and Sh. Vinay Kumar Gupta (JET).
The provision of regulation 52 (ix) Delhi Electricity Supply Code and Performance Standards Regulation, 2007, is reproduced as under:-
"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."
Apparently, other two members of inspection team namely Sh. Chandresh Kumar (LM) and Sh. Manoj Khurmai (PW4) have not signed the above said reports. PW4 (Manoj Khurmai) admitted in his cross examination that he has not signed all the reports except seizure memo. PW2 and PW4 have failed to explain CC No. 836/08 BYPL Vs .Mohd. Salim Page 10 of 14 New case No.325509/16 as to why the reports were not signed by PW4 (Manoj Khurmai) and Chandresh Kumar, despite of the fact that they both were also members of the inspection team. All the reports were required to be signed by all the members of the inspection team. Thus, by not signing the reports by two members of the inspection team, the inspection team had left a very serious lacuna in this case. Moreover, reports were also not pasted at the site. In the inspection report Ex.CW2/A also, there is no mention of offering the reports to the accused or representative of the accused and pasting the reports at the site. Though, PW2 and PW4 in their testimonies stated that the reports were offered to the accused but accused refused to accept the same and also did not allow to paste the same at the site of the premises, however, it appears that PW2 and PW4 just to fill up the lacuna stated that they offered the reports to accused and accused did not allow to paste the same, otherwise, the same should have been mentioned in the inspection report. Moreover, there is no mention in the testimony of PW2 and PW4 as well as in the inspection report, if there was any serious hindrance or resistance by the accused or consumer in pasting the reports. Even otherwise, presuming that, if there was any hindrance by the consumer or accused, than also, as to what efforts were made by the inspection team in pasting the reports, qua that there is no explanation or reasons shows by the PW2 and PW4. The inspection team could have also taken the help of the local police in pasting the reports, if there was any resistance at the site, but no such efforts were also made by the inspection team. Therefore, the inspection team had not complied with the abovesaid regulation at the time of inspection, which certainly goes against the complainant company.
15) Further, perusal of record shows that the company has not filed any receipt on record so as to suggest the service of show cause notices Ex.CW2/D and Ex.CW2/F respectively to the accused. It has been submitted by accused, in his statement u/s CC No. 836/08 BYPL Vs .Mohd. Salim Page 11 of 14 New case No.325509/16 313 Cr.PC that he has not received any show cause notices. The company ought to have placed on record the postal receipts so as to prove the service of show cause notices to the accused. In the absence of any postal receipts on record, it is unsafe to conclude that the company has properly effected the service of show cause notices upon the accused. PW3 also admitted that postal receipts are not placed on record, regarding the service of show cause notice to the accused. Therefore, in the absence of postal receipts etc, inference can be drawn that show cause notices were also not served upon the accused. Thus, complainant company has also failed to prove the service of show cause notices upon the accused.
16) In the speaking order Ex.CW2/F, it has been mentioned that average consumption pattern as per computer module works out to be 04.10 % which is less than prescribed limits of DERC. Perusal of the speaking order Ex.CW2/F, appears to be photocopy. It is also the contention of counsel for accused that original copy of speaking order has not been placed on record and also not produced during trial. However, PW3 in his cross examination denied that speaking order and show cause notice are photocopies. PW3 stated that these are original documents. Perusal of the speaking order Ex.CW2/F and show cause notice Ex.CW2/E, apparently, appears to be photocopies, therefore, these document Ex.CW2/F and Ex.CW2/E does not seems to be original. Otherwise also, the downloaded data of the consumption pattern has also not been placed on record, so as to prove that consumption pattern works out to be 04.10 %. All the above lacunas certainly goes against the complainant company.
17) In this case, during the Inspection of the premises in question, the Inspection Team had not joined the public persons in the Inspection. PW2 and PW4, who were members of inspection team, have not stated anything about any efforts made by inspection team in joining the public persons in the inspection.
CC No. 836/08 BYPL Vs .Mohd. Salim Page 12 of 14 New case No.325509/16Moreover, perusal of inspection report Ex.CW2/A also shows that there is no mention, if any efforts made by the inspection team to join the public persons in the inspection. PW2 and PW4 have also not stated as to why the public persons were not joined the inspection. The inspection team should have joined the independent public persons in the inspection, particularly, when meter in question was segregated at the site, without sending the meter in question to NABL accredited lab. Therefore, non-joining of public persons in the Inspection, goes against the case of the complainant company.
18) In view of the foregoing reasons as discussed above, the complainant company has failed to prove the offence alleged against the accused beyond reasonable doubt in the present case. Thus, the accused is entitled for acquittal. Accordingly, the accused is acquitted for the offence punishable u/s 135/138/151 of the Electricity Act, 2003. Bail bond of the accused stands canceled and 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 company on the basis of inspection dated 15.03.2008 be released by the company after expiry of the period of appeal.
19) Accused to furnish bail bond in terms of Section 437 (A) Cr.P.C.
20) File be consigned to record room.
Announced in open court ( Lal Singh )
on 21th day of January, 2017 ASJ(Special Court)Electricity,
Tis Hazari Courts, Delhi
CC No. 836/08
BYPL Vs .Mohd. Salim Page 13 of 14
New case No.325509/16
CC No. 836/08
BYPL Vs. Mohd. Salim
New case No.325509/16
21.01.2017
Present : Sh. Jitender Shanker, AR of the complainant company.
Sh. Vinod Prakash Sharma, proxy counsel for counsel for the accused with accused.
Vide separate judgment, the accused is acquitted for the offence punishable U/s 135/138/151 of Electricity Act, 2003. Bail bond of the accused is cancelled and 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 company on the basis of inspection dated 15.03.2008 be released by the company to the accused after expiry of period of appeal.
However, in terms of Section 437 (A) Cr.PC., accused is directed to furnish bail bond for the amount of Rs.15,000/- with one surety in the like amount, to appear before the appellate court, as and when such notice is issued in respect of any appeal, which may be filed against this judgment.
Bail bond under section 437(A) Cr.PC furnished and same stands accepted.
File be consigned to record room.
( Lal Singh ) ASJ/Special Court (Electricity) Tis Hazari/Delhi/21.01.2017 CC No. 836/08 BYPL Vs .Mohd. Salim Page 14 of 14 New case No.325509/16