Delhi District Court
Bses vs . Ram Kumar Sharma Page 1 Of 9 on 3 October, 2012
1
IN THE COURT OF SHRI NAROTTAM KAUSHAL, ADDL SESSIONS JUDGE,
THE SPECIAL COURT UNDER THE ELECTRICITY ACT 2003
SAKET COURTS, NEW DELHI
Complaint instituted on : 18.03.2009
Judgment reserved on : 24.09.2012
Judgment pronounced on : 03.10.2012
Complaint Case No. 90/09
Unique ID No.02403RO371722009
U/s 135 of Electricity Act, 2003
BSES Rajdhani Power Limited
A Company duly incorporated under
the Companies Act, 1956
Having its registered office at
BSES Bhawan, Nehru Place,
New Delhi - 110019
And its Corporate, Legal & Enforcement Cell
Near Andrews Ganj Market, N.D 110049
Acting through Shri Ashutosh Kumar
(Authorized Representative)
...Complainant
Versus
Sh. Ram Kumar Sharma (User & R/C)
H.No.2844, 2nd 60 Foota Road,
Molarband Extension,
Badarpur, New Delhi ...Accused
Appearances : AR for the complainant
Sh.Rajesh Kumar, proxy counsel for
Sh. S.S.Mittal, counsel for the complainant
Accused on bail
JUDGMENT
1 Complaint u/ sec.151 of the Electricity Act (hereinafter called as 'the Act') has been filed by the complainant company BSES Rajdhani Power Ltd. against accused Ram Kumar Sharma seeking to convict him for offence punishable U/sec. 135 of the Act and also for determining his civil liability. BSES Vs. Ram Kumar Sharma Page 1 of 9 2 2 It is the case of the complainant that on 06.10.2008, its inspection team inspected the premises bearing H.No.2844, 2nd 60 Foota Road, Molarband Extension, Badarpur, New Delhi. Accused Ram Kumar Sharma was found to be user as well as registered consumer with connection bearing K no.2541 C 224 6081. Meter bearing no.13560766 was found installed. However, at the time of inspection accused was found indulging in theft of electricity by directly tapping from BSES supply. The meter was found in idle condition. Illegal wire and meter were removed and seized. Connected load was assessed as 5.240 for nondomestic use. Inspection report, meter report, load report & seizure memo were prepared at the spot. Photography was carried out. On the basis of connected load and applicable tariff, a theft bill of Rs.1,87,204/ was raised. On failure of the accused to pay the same, present complaint was filed.
3 Cognizance of the offence was taken by the ld. predecessor of this court vide order dated 18.03.2009. Presummoning evidence was recorded and accused was summoned to face trial. Accused entered appearance on 25.05.2009 and was admitted to bail with directions to deposit 20 % of the theft bill amount. It was also directed that in case of acquittal he shall be entitled to refund with the interest as per RBI guideline. 4 Notice of accusation was framed by the ld. predecessor vide order dated 04.01.2010. Accused pleaded not guilty and claimed trial. He pleaded that he was the owner of the premises, which had been rented out to BSES Vs. Ram Kumar Sharma Page 2 of 9 3 one Triloki. Accused, however, pleaded that he had lodged a complaint about a fault in the service line in the morning and the raid was conducted during the day. He was not committing any theft of electricity and was thus not liable to pay any civil liability.
5.1 Complainant in support of its case, examined three witnesses. Sh. Binay Kumar (PW1) was the Authorised Representative of complainant company. He proved filing of the complaint and the authorisation in his favour by the CEO of the complainant company. Om Prakash (PW2) was the member of the raiding team. He proved the inspection proceedings but was not available for crossexamination.
5.2 The solitary material witness Satender Aggarwal (PW3) was the authorised officer to conduct the raid and team leader of the inspection team. He has deposed that the meter installed in the premises was lying in idle condition. The premises was being used by Ram Kumar Sharma. Inspection report, meter report, load report and seizure memo were prepared. The total connected load was assessed as 5.2 KW, which was running on direct theft for commercial purpose. Accused was identified by the witness. It was also pointed out that the accused was also covered in the videography. He further deposed that documents prepared at site were offered to the accused who refused to accept the same. Witness identified the meter bearing no. 13560766 and two core black coloured aluminum wire, seized from the spot as Ex.P2 & Ex.P3. On being crossexamined by the ld. defence counsel, PW3 BSES Vs. Ram Kumar Sharma Page 3 of 9 4 deposed that he was not aware if a complaint bearing no.8 dated 06.10.2008 was made by the accused intimating that service line of his meter was faulty. He also denied for want of knowledge if lineman Sanjay had visited the premises of the accused on 06.10.2008 at about 11:30 AM and prepared a report Ex.PW3/DA. He also denied for want of knowledge that at about 01:30 PM (wrongly recorded as AM), when the inspection team visited the premises service line had been temporarily restored by lineman Sanjay. He also denied that the information above referred was available with the inspection team and despite that accused was falsely implicated. He also denied suggestion that accused informed the inspection team that supply had been temporarily restored by the Lineman of the complainant company, only couple of hours before the inspection.
6.1 Incriminating evidence was put to the accused and his statement u/sec.313 Cr.P.C. was recorded. He denied his presence at the site at the time of inspection. He denied the documents to have been prepared in his presence. However, he admitted gadgets mentioned in the load report to be connected to supply. He, further, stated that the premises was in possession of his tenant Triloki Chand Bhandari. He had reached the premises about half hour after commencement of inspection. He further stated that on the date of inspection itself, he made the complaint at the Badarpur Complaint Center of BSES in the morning, that there was a fault in the meter. Complaint was attended by the Lineman Sanjay and he made a direct temporary connection and gave an acknowledgment slip to him. BSES Vs. Ram Kumar Sharma Page 4 of 9 5 6.2 He sought opportunity to lead defence evidence and examined Gaya Lal - Assistant Manager (O & M) of the complainant company as his solitary witness. Gaya Lal (DW1) brought the summoned record and proved entry in the complaint register Ex.DW1/A. As per entry in the register complaint made by Ram Kumar Sharma was entered at Srl. No.21434 dated 06.10.2008 at 11:00 AM. The complaint was attended by Lineman Sanjay who reported that service line of the consumer was faulty. He had sought permission to open the seal of the meter and restore temporary supply. On being crossexamined, he deposed that lineman Sanjay had expired on 19.12.2008.
7 Sh. Rajesh Kumar ld. counsel, on behalf of the complainant, has argued that presence of accused at the inspected premises is established. He has been identified by inspecting team. He was also the registered consumer and thus liable for the offence committed. It is further argued that the complainant's witness has sufficiently proved that the premises was running on direct supply and the meter was in idle condition. The plea of the accused that he was not in possession of property and Triloki was occupying the premises as tenant is not proved by any evidence.
8 Sh.A.K.Singh, ld. defence counsel has argued that the complainant's case is a figment of imagination. The filing of the complaint is malicious and motivated. Referring to the testimony of DW1, it is argued that BSES Vs. Ram Kumar Sharma Page 5 of 9 6 a complaint had been made by the accused regarding fault in his meter in the morning of the day of inspection. The complaint was attended by one Sanjay Lineman who found service line to be faulty. On seeking permission from his superiors, the said lineman Sanjay had temporarily restored direct supply. The inspection was carried out in the after noon of 06.10.2008, when the complaint aforesaid was still being attended. Accused informed the status to the inspection team, which despite knowledge of the status went on with the inspection and filed the present case. The conduct of the complaint amounts to unnecessary and undue harassment of consumer. Alternatively, it is argued by Sh. Singh that accused was not the user of the premises. The premises which was under the tenancy of one Triloki Singh Bhandari. Accused is only the landlord of the premises. Actual has not been impleaded as an accused. 9.1 I have heard the Ld. Counsel and with their assistance perused the complaint, evidence on record and the documents relied upon. 9.2 It has been the consistent plea of accused that shortly before the inspection on 06.10.2008, supply was temporarily restored by a lineman of the complainant company as there was a fault in the line. Solitary witness to the inspection, Satender Aggarwal (PW3) was given suggestions by ld. defence counsel to this effect. It was suggested to the witness that accused had made a complaint regarding fault in the service line, which was attended by lineman Sanjay and it was said Sanjay, who had temporarily restored direct supply. Satender Aggarwal (PW3), ofcourse, denied the suggestion for want of BSES Vs. Ram Kumar Sharma Page 6 of 9 7 knowledge. Accused in his defence evidence summoned the complaint register of the concerned division of BRPL for the date of inspection. Gaya Lal (DW1) brought the original register and proved the relevant entry, extract whereof was proved on record as Ex.DW1/A. Entry at Srl. No.8 of the complaint book (Ex.DW1/A) supports the plea of defence taken by the accused since beginning. It finds mention of complaint by Ram Kumar Sharma, which was attended by one Sanjay between 11:00 AM and 11:30 PM. The last column records supply line to be faulty requiring replacement of cable. DW1, on being examined, further clarified that lineman Sanjay had sought permission to open seal of the meter and to temporarily start the supply. He also identified the document relied upon by the accused (Ex.PW3/DA), which is purportedly a permission sought by lineman Sanjay to restore the supply temporarily.
9.3 The stand of the accused is, thus, vindicated in the testimony of Gaya Lal (DW1), who is the employee of the complainant itself. An employee from the complainant company, examined in defence, itself has demolished the case of complainant. Though there is no direct documentary evidence that lineman Sanjay had been granted permission to restore temporary supply; yet there is no contrary evidence as well. Denial of permission, if any, would be only under the exclusive knowledge of complainant company. Failure to prove such denial leads to the conclusion that permission was granted for restoring direct supply, temporarily. Accused has proved his stand that the supply had been connected directly by the official of complainant BSES Vs. Ram Kumar Sharma Page 7 of 9 8 company, in order to rectify the defects. It was also suggested to Satender Aggarwal (PW3) that the inspection team was informed of the supply having been temporarily restored by lineman Sanjay. I find no reasons to disbelieve the stand of the accused that this status was brought to the notice of inspection team, which in a totally brazen manner went ahead with the inspection and also filed the complaint without verifying the facts. The complaint is, thus, totally meritless, unwarranted & vexatious. The same is, thus, dismissed.
10 Before parting with the present judgment, I find it pertinent to record an advisory for the complainant. The complaint of this nature filed & pursued without verifying facts from other branches of the complainant itself amounts to uncalled for harassment to consumer. This is an apt example of a situation where the left hand is not aware of the activities of the right hand. Complainant can not wash off its responsibility towards the consumer by making an excuse that the activities of Operation & Maintenance wing were not to the knowledge of Enforcement team. Even if the facts were not available at the time of inspection; having been informed during the inspection or in any case during the trial, the complainant should have best withdrawn the steps taken and sought apology from the consumer. This court is restraining itself from making any comments on the conduct of the members of inspection team and is holding itself from imposing any substantial costs on complaint by way of compensation to the accused.
BSES Vs. Ram Kumar Sharma Page 8 of 9 9 11 In the aforesaid facts & circumstances as discussed above, I am of the considered opinion that complainant has failed to establish its case beyond reasonable doubts. I, therefore, hold that accused Ram Kumar Sharma is entitled to an honourable acquittal. He is, thus, acquitted. Bail bonds are cancelled. Surety is discharged. Accused is entitled to refund of amount deposited by him at the time of grant of bail with the interest @ of 7.5 % per annum. The amount be paid to the accused within one month of expiry of limitation to file appeal against the present judgment. File be consigned to record room.
Announced in the open (NAROTTAM KAUSHAL)
court on 03.10.2012 ADDL.SESSIONS JUDGE
SPL. ELECTRICITY COURT
SAKET COURTS NEW DELHI
BSES Vs. Ram Kumar Sharma Page 9 of 9