Delhi District Court
Bses Ypl vs . Yaqoob Page 1 Of 13 on 26 November, 2015
IN THE COURT OF SHRI LAL SINGH
ADDITIONAL SESSIONS JUDGE, SPECIAL COURT
(ELECTRICITY), TIS HAZARI COURT, DELHI
CC No.503/09
Unique case ID No. 02401R0532142009
BSES Yamuna Power Ltd.
Having its Registered office at:
Shakti Kiran Building,
Karkardooma, Delhi- 110092.
And
Corporate Office at
BSES Bhawan, Nehru Place,
New Delhi-110019
Through Sh. Rajeev Ranjan
(Authorized Officer). ............ Complainant
Versus
Sh. Yaqoob
H.No. 224, Basti Khawaja Meer Dard Road,
New Delhi. ............... Accused
Date of Institution : 21.11.2009
Judgment reserved on : 23.11.2015
Date of Judgment : 26.11.2015
JUDGMENT
1). Brief facts of the case are that on 22.06.2009, as per instructions of DGM enforcement-I, a joint inspection team comprising of Sh.Rattan Singh (Sr.Manager),Sh.K.Rehman (Engineer) besides Sh.Rajesh Kumar, Sh.Sanjay Kumar and Sh.Hemant Kumar (all electrician) of the complainant company, carried out an inspection CC No.503/09 BSES YPL Vs. Yaqoob Page 1 of 13 at the premises being no.224, Bati Khawaja Meer Dard Road, New Delhi. At the time of inspection, accused Yaqoob was the user as well as registered consumer of the electricity supply in the said premises, where one single phase electronic meter bearing no. 13521671 was found installed. During the inspection, meter ultrasonic welding was found opened and re-fixed. Meter was segregated at site in the presence of the consumer and two numbers illegal aluminium shunt were found connected phase to phase and neutral to neutral for suppressing recording of consumption by the meter. The meter in question was removed and seized by the inspection team vide seizure memo. As per the complainant, at the time of inspection supply was being used for non domestic purpose and connected load of 5.336 KW/NX was found against the sanctioned load of 1.00 KW/NX. The inspection report, load report and show cause notice dated 22.06.2009 were prepared at the site and the consumer was thereby informed to attend the personal hearing on 09.03.2009 at 11.00 a.m., but accused refused to accept the show cause notice and reports. The joint inspection team also took necessary photography/ videography. As the consumer has refused to receive and acknowledge the show cause notice dated 22.06.2009, hence another show cause notice dated 14.07.2009 was issued thereby informing the consumer to attend the personal hearing on 22.07.2009. The consumer attended the personal hearing on 22.07.2009 and denied any tampering of the meter and also disputed the load as found connected by the joint inspection team at the time of inspection.
Thereafter, speaking order dated 28.07.2009, was passed by Assessing officer (Enf.) of the complainant. As such accordingly, complaint for the offence under section 135/138 read with section 154 (5) of the Electricity Act,2003 has been filed against the accused.
CC No.503/09 BSES YPL Vs. Yaqoob Page 2 of 132). Complainant company led the pre summoning evidence. Thereafter, vide order dated 06.03.2010 the accused was summoned for offence punishable u/s 135 of Electricity Act, 2003. After that, vide order dated 21.07.2010, notice u/s 251 Cr.P.C. was framed against the accused for the offence punishable u/s 135/ 138/151 of the Electricity Act, 2003, to which accused pleaded not guilty and claimed trial.
3). In the instant matter, complainant company has examined three witnesses in all, namely, PW-1 Sh. Rajeev Ranjan (AR), PW-2 Sh.Ratan Singh (Sr.Manager) and PW3 Sh. N.Roy (ASVP).
4). PW-1 Rajeev Ranjan is a formal witness, who stated that the complainant company executed power of attorney dated 29.08.2006 in his favour, through Sh. Arun Kanchan, CEO of complainant vide Ex. CW1/B. Present complaint Ex. CW1/A was filed by PW1.
5). PW-2 Sh.Ratan Singh (Sr.Manager)deposed that on the instruction of DGM and reference from the Analytical Department of complainant, on 22.06.2009 at 04:35hrs, a team comprising of himself as well as Sh. K.U.Rehman (DET), Sh.Rajesh Kumar, Sh. Sanjay Kumar and Sh. Hemant Kumar (all LM) had inspected the premises bearing no. 224, GF and FF Basti Khawaja Meer Dard Road, Delhi. At the site, they found installed a single phase electronic meter bearing no. 13521671 in the premises in question. The inspection team observed that meter utlrasonic welding found opened and refixed. They removed the said meter from site and segregated the same at site and found two numbers of illegal CC No.503/09 BSES YPL Vs. Yaqoob Page 3 of 13 alluminium shunt connected phase to phase and neutral to neutral in the meter. Thereafter, meter was seized at site in the presence of user. The supply was restored through new meter by the MMG Department who arrived on call of PW-2. PW-2 further stated that they took photographs vide Ex.CW-2/J of the electronic meter and connected load to the possible extent. The CD of the same was also prepared vide Ex.CW-2/K. PW-2 also prepared inspection report vide Ex.CW-2/A. Meter detail report Ex.CW-2/B and load report Ex.CW-2/C respectively were prepared by Sh.K.U.Rehman. The connected load was found to the tune of 5.336KW for Non Domestic Purpose. On instructions of PW-2, Sh. Rajesh Kumar (lineman) seized the meter vide seizure memo Ex. CW-2/D. PW-2 further stated that he also tried to serve show cause notice dated 29.06.2009 to accused to appear before competent authority for 06.07.2009 at about 10:00 AM. As per PW-2 they offered the reports and show cause notice to the representative of the accused, who refused to sign the same and did not allow to paste the same at the premises in question. PW-2 identified the single phase electronic meter bearing no. 13521671 during trial as Ex. P1.
In cross examination, PW2 admitted that the breaking of seals in the meter is not visible in any of the photographs Ex.CW2/J. He further admitted that there is no photograph of paper seal no. YN05207 of meter in question. PW-2 also specifically admitted that without tampering / cutting the paper seal the meter cannot be opened. PW-2 further stated that meter was not sent to laboratory for testing. PW-2 in his cross examination while going through the opened meter, stated that at present two aluminum shunt are not present in the meter.
6). PW-3 Sh. N. Roy, ASVP deposed that in the CC No.503/09 BSES YPL Vs. Yaqoob Page 4 of 13 year 2009, he was posted as Assessing Officer with the complainant company. On the basis of inspection report, he issued second and final show cause notice dated 14.07.2009 vide Ex.CW-2/F to the accused at the address furnished in the complaint for personal hearing and same was sent through speed post vide postal receipt bearing no. ED57079827 1 IN vide Ex.PW-3/A. On 22.07.2009, accused appeared and submitted his reply vide Ex.CW-2/G. Thereafter, on analysing of the consumption pattern of meter in question and considering the inspection report, he passed speaking order dated 28.07.2009 vide Ex.CW-2/H, with the observation that the average consumption pattern as per computer module work out to be 6.70%, which is less than a prescribed limit of DERC.
In the cross examination, PW-3 stated that as per regulations, 2007, the inspection team cannot segregate the meter at site. He has also not physically checked the meter. PW-3 also admitted that record of consumption pattern was not on record. Further he has not checked the consumption pattern of new meter, as he only checked the consumption pattern for the period prior to removal of the meter.
7). Thereafter, statement of accused u/s 313 Cr.PC was recorded, in which accused denied the allegation against him. He also stated that no raid was conducted at his premises. Accused in his statement u/s 313 Cr.PC also stated that he has been falsely implicated in the present case and further stated that the photographs and CD does not belongs to his premises. Accused has not led DE.
8). I have heard the arguments of Ld. Counsel for the complainant as well as Ld. Counsel for the accused.
CC No.503/09 BSES YPL Vs. Yaqoob Page 5 of 139). Sh.Anil Bhasin, Ld. Counsel for the complainant submitted that accused was user as well as registered consumer of the meter in question through which electricity was being supplied in the premises of the accused. He also argued that at the time of inspection accused was found indulged in dishonest abstraction of energy, as two shunts were found installed in the meter from phase to phase and neutral to neutral. He further submitted that in photographs Ex.CW2/J the illegal shunts have been shown. Counsel for the complainant submitted that the complainant witnesses have proved the offence alleged against the accused.
10). On the other hand, Ld. Counsel for the accused submitted that PW2 in his cross examination stated that there were no two shunts found present in the meter in question, though it was the specific allegation of the complainant company that accused indulged in DAE and two shunts were found installed in the meter. Therefore, the PW-2 has shattered the entire case of complainant company. Counsel for the accused also submitted that the meter was not sent to laboratory for testing as per requirement under the provision of Regulation 52 (viii) of Delhi Electricity Supply Code and Performance Standards Regulation, 2007. He further submitted that inspection team was not authorized to segregate the meter in question. Further the complainant witnesses have failed to prove the offence alleged against the accused.
11). I have considered the submissions of Ld. Counsel for the parties. I have also perused the file and gone through the evidence on record.
12). In the instant matter, so as to prove its case, CC No.503/09 BSES YPL Vs. Yaqoob Page 6 of 13 complainant has examined three witnesses in all. PW-1 Sh.Rajeev Ranjan is a formal witness, who has filed the present complaint vide Ex.CW-1/A. PW-2 Sh.Ratan Singh (Sr. Manager) was the members of raiding team who inspected the premises in question. Therefore PW-2 is a very crucial witness of the complainant company. As per PW-2 at the time of inspection, one single phase electronic meter bearing no. 13521671 was found installed in the premises in question, however the meter ultrasonic welding was found opened and re-fixed. The inspection team segregated the meter at site and they found two illegal aluminum shunt connected phase to phase and neutral to neutral in the meter. Thereafter the inspection team seized the meter at the site. PW-2 identified the meter Ex.P1 during trial. However, in cross examination PW-2 after going through the meter which was opened in the court, specifically stated that there are no two aluminum shunt in the meter at present. This testimony of PW-2 is very fatal to the complainant case as the entire case of the complainant is based upon the allegation that at the time of inspection two shunts were found installed in the meter in question for recording the less consumption. As such PW-2 has shattered the case of the complainant as he categorically stated that two shunts are not present in the meter.
13). Further, PW-2 admitted that meter in question was not sent to laboratory for testing. Though PW-2 stated that the tampering in the meter was visible with the naked eyes and hence there was no need to sent the meter for laboratory for the purpose of testing. However, as discussed above, PW-2 in his cross examination categorically stated that two aluminum shunts were not present in the meter. Hence, this itself belies the contention of PW-2 that tampering of meter was apparently visible without opening the meter.
CC No.503/09 BSES YPL Vs. Yaqoob Page 7 of 13The 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 presence of 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.
Admittedly, the meter in question was not sent for testing in the NABL accredited laboratory. Therefore, the complainant company has not complied the aforesaid mandatory regulation of the Act in the present case.
14). Otherwise, also PW-3 specifically stated that as per regulation 2007, the inspection team cannot segregate the meter at site. Moreover, PW-2 admitted that the position of the meter showing the breaking of the seals is not visible in any of the photographs Ex.CW-2/J. PW-2 who was member of raiding team also admitted that there is no photographs of paper seal number YN05207 CC No.503/09 BSES YPL Vs. Yaqoob Page 8 of 13 of the meter in question. He also admitted that without tampering / cutting the paper seal the meter cannot be opened. PW-2 failed to explain or give any cogent reason as to why the photographs of the paper seal were not taken or had it been taken than as to why the same has not been placed on record.
15). The speaking order was passed by PW-3 Sh.
N.Roy (Assistant Vice President) of complainant. PW-3 issued show cause notice dated 14.07.2009 vide Ex.CW-2/F to the accused on the basis of inspection report. Accused has also filed his reply vide Ex.CW-2/G to the said show cause notice. In his reply Ex.CW-2/G, accused categorically denied any tampering in the meter by him. As per PW-2, he passed speaking order dated 28.07.2009 vide Ex.CW-2/H, after analysing the consumption pattern of the meter in question and considering the inspection report. However, he admitted that consumption pattern was checked by him for the period prior to removal of meter for the period of one year and he has not checked the consumption pattern of new meter. He also stated that he has not physically checked the meter. As such it is amply clear that PW-3 has passed the speaking order only on the basis of consumption pattern prior to the removal of the meter and on the basis of inspection report. Moreover, PW-3 admitted that the record of consumption pattern is not placed on record. In the complaint it is contended that the illegal aluminum shunt were found connected from phase to phase and neutral to neutral for suppressing the recordinng of consumption by the meter and the consumer has intentionally and deliberately fiddled with the meter for sole motive of not allowing the exact recording of consumption by the meter. However, in the complaint is is nowhere mentioned as to how much less consumption was found recorded in the meter at the time of inspection. PW-3 who CC No.503/09 BSES YPL Vs. Yaqoob Page 9 of 13 has passed speaking order stated that average consumption pattern as per computer module work out to be 6.17% which is less than the prescribed limit of DERC.
However, the consumption pattern itself does not lead to inference of DAE, in absence of cogent evidence of any physical tampering with the meter. 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 CC No.503/09 BSES YPL Vs. Yaqoob Page 10 of 13 inspection which can indicate whether the consumer has herself 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.
16). Otherwise, also in this case public persons were neither joined the inspection nor they were examined, so as to substantiate the allegation of DAE case against the accused. There is also no satisfactory explanation on behalf of the complainant as to why the public persons were not joined in the inspection.
17). Further perusal of reports, inspection report Ex.CW2/A, meter detailed report Ex.CW-2/B and connected load report Ex.CW-2/C same were only signed by PW-2 Sh.Ratan Singh (Sr. Manager) and Sh.K.U.Rehman (Engg.), though admittedly apart from them there were three more members of raiding team namely Sh. Rajesh Kumar, Sanjay Kumar and Hemant Kumar (all electricians). All the aforesaid three electricians who were members of raiding team have not signed the aforesaid reports. There is also no explanation from the complainant as well as witnesses as to why all the aforesaid three electricians who were part of raiding team have not signed the aforesaid reports.
Moreover, the reports were admittedly not pasted at the site of the inspected premises. As per regulation 52 (ix) Delhi Electricity Supply Code and Performance Standards Regulation, 2007, the report shall be signed by 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 CC No.503/09 BSES YPL Vs. Yaqoob Page 11 of 13 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.
Therefore, the complainant has also not complied with the provisions of aforesaid mandatory regulations of the Act. As such the complainant company has left a serious lacuna in the present case.
18). Further, the compact disc (CD) containing videography has also not been proved in accordance with law as the complainant company has not filed the requisite certificate u/s 65 B of Indian Evidence Act. In the absence of the certificate u/s 65 B of the Indian Evidence Act, the complainant company failed to prove the CD Ex.CW-2/K and photographs Ex.CW-2/J in accordance with law. Therefore, the CD and photographs placed on record are of no much help for the complainant case. Moreover, it has not been mentioned in the complaint as to who has taken the photographs of the irregularities stated to be found at the site. Even PW-2 who was member of the raiding team has also not mentioned as to who has taken the photographs. It is not sufficient for PW-2 to state only that photographs Ex.CW2/J and CD Ex.CW2/K pertains to present case. PW-2 being member of the raiding team ought to have tell as to who has clicked the photographs at the site.
19). 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. As such the accused is entitled for acquittal. The accused is accordingly acquitted for the offence punishable u/s 135/138/151 of the Electricity Act, 2003. Bail bond of the accused stands canceled CC No.503/09 BSES YPL Vs. Yaqoob Page 12 of 13 and surety 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 22.06.2009 be released by the complainant company after expiry of period of appeal.
20). Accused to furnish bail bond in terms of Section 437 (A) Cr.PC. 21). File be consigned to record room. Announced in open court ( Lal Singh ) on 26th day of November, 2015 ASJ/Special Court (Elect.) Tis Hazari/Delhi CC No.503/09 BSES YPL Vs. Yaqoob Page 13 of 13 CC No.503/09 BYPL V/s Yaqoob 26.11.2015 Present: Sh. Jitender Shankar, AR with Sh. P.K. Rai , LR of the complainant company.
Sh. Praveen Yadav, Ld. counsel for accused with accused.
Vide separate judgment of even date, accused is acquitted of the charge/offence punishable U/S 135/138/151 of Electricity Act 2003. Bail bond of the accused is canceled and surety is 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 22.06.2009 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 a bail bond for the amount of Rs.20,000/- 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 (Elect.) Tis Hazari/Delhi/26.11.2015 CC No.503/09 BSES YPL Vs. Yaqoob Page 14 of 13