Delhi District Court
Through: Authorized Officer vs . on 31 July, 2018
IN THE COURT OF MS REKHA
ADDITIONAL SESSIONS JUDGE, (SPECIAL COURT)
ELECTRICITY, TIS HAZARI COURT, DELHI
CC No.412/10
New case No.327008/16
U/s 135/138 of Electricity Act, 2003
BSES Yamuna Power Ltd.,
Having its Registered office at:
Shakti Kiran Building, Karkardooma,
Delhi110032.
Through: Authorized Officer
Sh. Rajeev Ranjan, A.M.(Legal) ........Complainant Company
Vs.
1) Naved ..........Accused
Address: Mohd. Tagi, Shop No.1932/3,
G.F., Masjid Hauz Wali, Mohalla Qabristan,
Turkman Gate, Delhi.
Date of Institution : 22.04.2010
Date of Judgment : 31.07.2018
Final Order : Aquitted.
BYPL Vs . Naved page 1
JUDGMENT
1). The complainant company i.e. BSES Yamuna Power Ltd.
(in short BYPL) has filed the present complaint case under Section
135 & 138 Section 154(5) 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). Brief facts of the case are that as per direction of Sh.Abdul
SalamDGM (EnfI) inspection was conducted on 18.08.2009 at
about 12:15 PM by the joint team of the complainant company,
comprising of Sh.Jograj SinghSr. Manager(Enf.), Sh.Suresh
Chand (D.E.T), Sh.Hemant Kumar (L.M.) & Sh.Radhey Shyam
(L.M.) in respect of K.No.112023180502 (new) 4DG0029889812
(old) & meter no.14071318 (hereinafter referred as subject meter)
at premises bearing Shop no. 1932/3, G.F., Masjid Hauz Wali,
BYPL Vs . Naved page 2
Mohalla Qabristan, Turkman Gate, Delhi (hereinafter referred as
subject property) in the presence of the consumer/ representative
at site who associated to the joint team throughout the inspection
proceedings but accused refused to sign the inspection report. It
is stated that at the time of inspection, the connected load of the
premises was found 3062 KW under nondomestic category
against the sanctioned load of 1.00 KW/NX. It is also stated that
during inspection meter data/date & time found disturb/
mismatched, Real Time Clock was found failed as meter showing
the date 03.06.00, time 00:49:17 hrs., however, actual date was
28.08.2009 & time 12:15. It is stated that it may due to apply of
ESD/HF coil to manipulate the consumption of meter. It is stated
that necessary photographs have been taken at site by inspection
team and IR No.11224 was pasted on the meter to maintain status
quo. It is stated that meter was replaced by MMG staff and old
meter has been seized vide seizure memo no.BYSMOA005522
and meter was sent to lab for testing/ analysis. It is also stated that
BYPL Vs . Naved page 3
inspection report vide No.BYIROA005197, load report no.BY
LROA005672 & meter report vide No.BYMDOA006273 dated
18.08.2009 were prepared at site on the basis of factual position
but accused has refused to sign the reports and same were sent
along with shows cause notice. It is stated that meter was tested
by lab and laboratory has observed in its report no.BYTR/11290
dated 07.09.2009 that meter plastic and hologram seals found Ok,
as per functional test meter LCD and LED found Ok, meter Real
Time Clock date shown as 24.06.2000 where as on actual date
08.09.2009, meter output neutral to phase terminal found burnt. It
is stated that meter maximum demand history date found occurred
more than once in a month and laboratory has concluded that
meter got disturbed which indicates that meter is frequently
subjected to abnormal external disturbances. It is stated that the
consumption pattern has been examined by inspection team and
found that average consumption pattern (in short C/P) as per
computer module works out to 5.54% which is less than
BYPL Vs . Naved page 4
75% of the assessed consumption, as per clause52 (ix), chapter
VII of DERC Regulations. It is stated that the show cause notice
for DAE dated 18.08.2009 was issued by Sh.Sarjan Mangal
Assessing Officer (EnfII) was sent to accused for attending
personal hearing on 06.11.2009 at 10:30 to 12:30. Accordingly,
accused attended the personal hearing on 06.11.2009 and stated
that he was not indulged in meter tampering and requested for
consideration. It is stated that after considering the submissions of
accused and on the basis of material available Sh. Sarjan Mangal,
Assessing Officer of the complainant company has passed a
detailed speaking order dated 18.12.2009 and copy of the
speaking Order was sent to the accused on 24.12.2009. The
complainant company has also raised the theft assessment bill/
civil liability in the sum of Rs.69,894/ against the accused for
DAE/ meter tampering but failed to pay the same. Hence, this
present complaint case.
3). Thereafter, the complainant company led the pre
BYPL Vs . Naved page 5
summoning evidence. Vide order dt. 29.10.2010 accused was
summoned to face the trial for the offence alleged against him.
After that vide order dated 29.04.2013, notice u/s 251
Cr.P.C., had been served upon the accused for the offence
punishable u/s 135/138 of the Electricity Act, 2003 to which
accused pleaded not guilty and claimed trial.
4). In this case, the complainant company has examined
five witnesses so as to prove its case, namely PW1Sh. Jograj
SinghSr. Manager, PW2Sh.Sarjan Mangal Sr. Manager, PW3
Sh.Radhey ShyamDET, PW4 Sh.Anuj VermaGM & Sh. Jitender
Shanker (AR of the complainant company.
5). As per testimony of PW1 Sh. Jograj Singh Sr.Manager,
on 18.08.2009 at about 12.15 p.m., he alongwith inspection team
inspected the premises of accused Naved bearing Shop No.
1932/3, GF, Masjid Hauz Wali, Mohalla Kabristan, Turkman Gate,
BYPL Vs . Naved page 6
Delhi. It is testified by PW1 that as per direction of DGM they
inspected the premises and found installed meter burnt and
supply was bypassed by the complaint center staff. He
observed / found that the meter was deliberately burnt. Then he
called MMG staff to replace the meter at site. The meter was
replaced by the MMG staff and supply was restored through new
meter. Thereafter, burnt meter was seized with IR and sent to
the meter testing lab for testing and further more clarification.
They prepared the inspection report at site and same was offered
to the accused but he refused to sign and accept the same and
also did not allow to paste the same at site. The inspection report
(already Ex. CW2/A), load report (already Ex. CW2/B), meter
detail report (already Ex. CW2/C) and seizure memo (already Ex.
CW2/D) were prepared at site. They further took the connected
load at the premises which was found to be 3.062 KW /NX.
The supply was being run for commercial purpose.
BYPL Vs . Naved page 7
The photographs (already Ex.CW2/L) and videograhy
(Ex.CW2/D) was done. He identified a single phase electronic
meter bearing no. 14071318 of make Kaifa and a carbon
copy of seizure memo ( original already on record). The meter
is Ex.P1. During trial, accused was identified by PW1 in the
court.
6) As per testimony of PW2 Sh. Srajan MangalSenior
Manager, in the year 2009, he was posted in the Enforcement -
II, as a Manager at Patparganj, Delhi. He was the assessing
officer in this case and on the basis of inspection report (Ex. CW
2/A, colly), load report (Ex. CW 2/B, colly), meter report (Ex. CW
2/C) and laboratory report, he issued a show cause notice to
the accused 10.09.2009. As per inspection, meter was found
stuck at reading 313 on dated 18.08.2009 and meter date
and time was found disturbed. As per laboratory report meter
BYPL Vs . Naved page 8
MDI history occurred more than once in the month and meter was
subject to external disturbances. These were the contents of the
inspection report and the laboratory report and on the basis of
above said facts, a show cause notice was issued / given to the
accused to appear or file a reply on or before 06.11.2009. Show
cause notice already Ex. CW 2/G bears his signature at point A.
Consumer/ accused appeared and also submitted his written reply
in which he denied any meter tampering and requested to
consider the case sympathetically. The reply of the consumer is
already Ex. CW 2/H. After considering the reply submitted by
consumer and analysis the consumption pattern of the meter in
question, he passed the speaking order dated 18.12.2009, same
is already Ex. CW 2/I, same bears his signature at point A. He
came to the conclusion that meter was stuck since May, 2009
till the date of inspection. The consumption pattern worked
out from the computer module by 5.54% which is very low
BYPL Vs . Naved page 9
and after meter change the consumption consistent. The MDI
recorded was much more than the connected load found which
indicates that consumer has deliberately removed some of the
load to hide the facts. Therefore, case of Dishonest Abstraction of
Energy was established against accused.
7). As per testimony of PW3 Sh.Radhey Shyam
DET, during course of inspection, meter no. 14071318 was
inspected which was used by accused Naved. The date and time
of the meter was disturbed. At the instruction of Jog Raj (Sr.
Manager), he removed the meter and same was seized in his
presence vide seizure memo already Ex.CW2/D which bears
his signature at point B. It was a case of DAE and hence the
meter was sent to lab for its further investigation. He
identified meter bearing no. 14071318 alongwith a
carbon copy of seizure memo and stated that the
BYPL Vs . Naved page 10
same was seized from the spot.
8). As per testimony of PW4 Sh. Anuj Verma,
General Manager, on 21.08.2009, he received a single phase
meter which was in the name of Naved for its testing. On
08.09.2009, the same was handed over to Sh. Sunil Kumar who
tested the meter in his supervision. After testing the meter, it was
found that meter output neutral and phase terminal were borne
and the data was also downloaded from meter and as per
downloaded data, the meter RTC date shown as 24.06.2000
whereas the actual date was 08.09.2009. The meter was
showing Maximum Demand (in short MD) occurred more than
once in a month. The above said symptom shows that the
meter was intentionally disturbed. The meter was subjected to
abnormal external disturbance. After testing of the meter,
report was prepared which is already Ex. CW2/F.
During trial, PW4 identified the case
BYPL Vs . Naved page 11
property meter No.14071318 showing manufacturing date
03/2008 and with slip No.6283, report No. BYTR/11290 dated
07.09.2009 alongwith carbon copy showing seizure memo No.
BYSMOA005522 and stated that it is the same meter which
was tested in his presence and he also pointed out towards the
output terminals of the meter which were burnt.
09). As per testimony of PW5Sh. Jitender Shankar
DGM, he is the AR of complainant company and the present case was
filed by Sh. Rajeev Ranjan, the then AR vide the complaint already
Ex.CW1/A. He identified the signatures of Sh.Rajeev Ranjan as he
worked with him and seen him signing the officials document. He also
testified that GPA in favour of Rajeev Ranjan is already Ex.CW1/B. He
also testified that he had been authorized to pursue the case through
GPA and self attested photocopy of the same is MarkA.
10).
Thereafter, statement u/s 313 Cr.P.C, of accused had
been recorded, in which he has denied the allegations against him
BYPL Vs . Naved page 12
and stated that meter was not burnt and not bypassed and was
okay and old meter was taken away and new meter was installed.
He also stated that he did not know whether meter was sent to
lab for testing. He also stated that laboratory report was never
sent to him. Other reports were received by post and he appeared
for personal hearing before Assessing Officer. He also stated that
he was the user and no seizure memo was prepared at site. He
also stated that Sh. Rajeev Ranjan was not authorized to file the
present complaint. He also stated that he has been falsely
implicated in the present case.
11. I have heard the arguments and perused the material
available on record as well as relevant provisions.
It is to note here that as per testimony of PW1, as per
direction of DGM they inspected the premises. It is very relevant
to mention here that during crossexamination, PW1 stated
that they had written permission before starting for inspection
and there was no written permission in the court file.
It is to note here that no written permission has been
proved on record by the complainant company.
In view of the abovediscussion, the view of the Court is
that complainant company failed to prove that there was any
such written permission to inspect the subject property . Mere
say is not sufficient that the alleged raid was conducted at the
BYPL Vs . Naved page 13
subject property on the basis of written permission. Here, it is
also said that it is crystallty clear that the cause for which
alleged raiding party was formed in order to conduct alleged
raid at the subject property was not the alleged written
permission.
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.
It is also relevant to pen down here that as per
the testimony of the PW1 and PW3, there were four members in
the alleged inspection team namely Jograj SinghManager, Sh.
BYPL Vs . Naved page 14
Suresh ChandDET, Hemant and Radhey Shyam (Both Lineman).
It is very relevant to pen down here that perusal of the
inspection report Ex. CW2/B, it is found that only two signatures
are appearing.
Here, it is said that what stopped the other two alleged
members of inspection team to sign the inspection report. The
inspection report should have signed by all the members.
In light of abovesaid discussion, view of the Court is
that Regulation 52 (ix) of Delhi Electricity Supply Code and
Performance Standards Regulation, 2007 has not been
complied with by the alleged inspection team members.
As per the crossexamination of PW1, they gave a date in
the notice about testing of meter in the lab. It is relevant to pen
down here that in the statement of accused, the accused stated
that he did not know whether meter was sent to the lab for testing.
It is to note here that no document has been proved on
BYPL Vs . Naved page 15
record that the accused had been served any alleged show
cause notice regarding presence of the accused at the time of
alleged testing of alleged meter in the laboratory.
Here view of the Court is that the complainant
company failed to prove that notice was ever served upon the
accused.
The provision of Regulation 53 (ii) of Delhi
Electricity Supply Code and Performance Standards
Regulation, 2007, is reproduced as under:-
(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 PW2-Sh.
BYPL Vs . Naved page 16
Rajan Mangal-Sr. Manager, he issued a show cause notice to the
accused 10.09.2009 to appear or file a reply on or before
06.11.2009 and same is already EX. CW2/G and the consumer
appeared and also filed his written reply and same is already Ex.
CW2/H. He also testified that as per laboratory report, meter MDI
history occurred more than once in the month and meter was
subject to external disturbances. He also testified that after
considering the reply and analysis the consumption pattern of subject
meter, he passed the speaking order dated 18.12.2009 and same is
already Ex. CW2/1. It is very relevant to pen down here that during
cross-examination, PW2 stated that there was no mentioned of any
laboratory report in the show cause notice dated 10.09.2009 issued by
him and no laboratory report was sent to the accused before passing
the speaking order dated 10.09.2009. He voluntarily said that
laboratory report was sent after passing the speaking order.
Here, view of the Court is that laboratory report should have
sent to the accused before passing the alleged speaking order.
It is also very relevant to pen down here that perusal of
reply EX. CW2/G shows that date is mentioned as 10.09.2009.
BYPL Vs . Naved page 17
Here view of the Court is that the alleged speaking
order dated 18.12.2009 should have passed within three days
from the date of personal hearing on 06.11.2009 but same was
passed on 18.12.2009 i.e. after the gap of approx. 42 days. No
reason assigned for the huge delay in passing the speaking order.
Hence, the complainant company has not complied with the
aforesaid regulation.
It is to note here that as per the testimony of PW1,
photographs (already Ex. CW2/L) and videography (CW2/D) was
done. It is very relevant to pen down here that during the cross-
examination, PW1 stated that the photograph they had with digital
camera and videography was not done. Here view of the Court
is that there is contradiction in the testimony and cross-
examination of PW1.
It is also relevant to pen down here that as per the
complainant, necessary photography had been taken at site by the
joint team. It is also relevant to pen down here that PW3 did not
testify regarding any photography. Here it is said that it is not clear
that who had clicked the photography of alleged inspection at the
BYPL Vs . Naved page 18
relevant time. No photographer has been examined by the
complainant company in this case who allegedly clicked the
photographs.
Moreover, the complainant company has also not
relied upon the requisite certificate u/s 65B of the Indian
Evidence Act, so as to prove the photographs and
videography. Thus, the complainant company has failed to
prove the alleged photographs and video in the present case
in accordance with law. Therefore, the photographs and
alleged video are of no help for the case of the complainant
company.
In this case, the inspection team has not joined the
independent public persons during inspection. PW1 during
cross-examination stated that they did not obtain signatures
of any public witness at site on the seizure memo. Further, in
the inspection report Ex.CW2/A 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
BYPL Vs . Naved page 19
been joined in the inspection. Therefore, non-joining of the
public persons during inspection also goes against the
complainant company.
As per the testimony of PW1 and PW03, there
were four members of the alleged inspection team. It is very
relevant to pen down here that complainant company
examined only two members out of alleged four members of
alleged inspecting team. Had, the complainant company
examined remaining other alleged members of the alleged
inspection team, the accused definitely would have got the
opportunity to crossexamine them.
As per the testimony of PW4Sh. Anuj Verma, after
testing the meter, it was found that meter output and phase
terminal were burnt. The data was also downloaded from
meter and as per downloaded data, the meter RTC date
shown as 24.06.2000 whereas the actual date was
BYPL Vs . Naved page 20
08.09.2009. The meter was showing Maxmimum Demand
occurred more than once in a month. The abovesaid
symptom showed that the meter was intentionally disturbed.
The meter was subjected to abnormal disturbance. In the
judgment titled as Col. R.K.Nayyar vs. BSES Rajdhani Power Ltd.
140 (2007) DLT 257, wherein it has been observed as under :-
"This court is of the view that an inference of
fraudulent abstraction of energy must be based on the
some conclusive evidence that the user has tampered
with the meter in a manner that has enabled such user
to either slow down the meter or make it record lesser
units of consumption. There must be a link established
between the physical evidence of tampering noticed on
inspection and the consumer. An inference of FAE
should not be permitted to be drawn on the mere fact
that meter had been found with broken seal. An
electricity meter is admittedly not kept enclosed in a
tamper proof environment under the lock and key, with
one key retained by the consumer and the other by the
supplier of the electricity. If a meter is kept in a location
that permits any person intending to do mischief to
have easy assess to the meter, than to fasten the
charge of FAE on the consumer in the event of meter
being found tampered, is not being reasonable or even
realistic. Something more would have to be
demonstrated to infer an intention by the consumer to
"fraudulently" abstract electricity. In this context it is
necessary to emphasis that the analysis of
consumption pattern cannot constitute substantive
proof of DAE in the absence of tangible physical
evidence of DAE in the manner explained above. In
other words, the analysis of consumption pattern can
only corroborate what is found on physical inspection
which can indicate whether the consumer has herself
BYPL Vs . Naved page 21
or himself employed a device or a method to
dishonestly abstract electricity. It will not be opened to
the respondent, in the absence of any tangible
evidence of DAE, to proceed on the basis of consumption pattern to infer DAE.
As per complaint, disturbance in the meter might be because of application of ESD/HF coil. Here, it is said that alleged members of alleged raiding team were not theirselves sure that there was application of ESD/HF coil.
It is very relevant to pen down here that as per the cross-examination of PW2, no device was found at site through which any external disturbance could be applied to the meter. He also admitted that RTC failure might occur due to other reasons also. It is also relevant to pen down here that as per the cross-examination of PW4, no device through which the alleged disturbance could be applied was received in the lab. As such, in the instant case, the complainant company has failed to show any tangible evidence of dishonest abstraction of energy (DAE) against the accused.
In view of above-discussion, the complainant BYPL Vs . Naved page 22 company has failed to prove the offence alleged against the accused-Naved beyond reasonable doubt in the present case. Thus, the accused namely Naved is entitled for acquittal. Accordingly, accused namely Naved is acquitted for the offence punishable Under Section 135 and 138 of the Electricity Act, 2003. Bail bond of the accused stands canceled 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 company on the basis of alleged inspection dated 18.08.2009 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 Digitally signed after due compliance. REKHA by REKHA Date: 2018.07.31 17:10:50 +0530 Announced in open court (Rekha ) on day of 31st July, 2018. ASJ(Special Court)Electricity, Central/Tis Hazari Courts, Delhi BYPL Vs . Naved page 23