Delhi District Court
Acting Through Sh. Ashutosh Kumar vs . on 26 October, 2018
IN THE COURT OF MS REKHA,
ADDITIONAL SESSIONS JUDGE, (SPECIAL COURT)
ELECTRICITY, CENTRAL DISTRICT, TIS HAZARI COURT,
DELHI
CC No. 420/09
New case No.326294/16
U/s 135 and 138 of Electricity Act, 2003
BSES Rajdhani Power Ltd.,
Having its Registered office at:
BSES Bhawan, Nehru Place,
New Delhi110019
Also at:
Corporate, Legal and Enforcement Cell,
Near Andrew Ganj Market,
New Delhi110049
Acting through Sh. Ashutosh Kumar
(Authorized Officer) ....................Complainant
Vs.
1) Dinesh (User)
S/o B.S. Arora
2. M/s B.F. Mills (R/C)
Through ProprietorV.K. ..............Accused persons
Both Address at:
A78, Ground Floor,
WZ306A, Hari Nagar,
New Delhi110064
BRPL Vs . Dinesh & Anr. CC No. 420/09 page 1
Date of Institution : 25.09.2009
Date of Judgment : 26.10.2018
Final Order :Both accused acquitted
JUDGEMENT
1). The complainant company i.e. BSES Rajdhani Power Ltd.
(in short BRPL) has filed the present complaint case under Section
135, 138, 150 and 154(5) of the Electricity Act, 2003 (hereinafter
referred as 'Act') against the accused persons praying that
accused persons be summoned, tried and punished as per law
and for determining the civil liability of the accused persons.
2). Brief facts of the case are that the complaint is filed by the
complainant company acting through the Authorized Officer/officer
Sh. Ashutosh Kumar who was duly authorized by Chief Executive
Officer of the complainant company vide General Power of
Attorney dated 18.08.2009. It is also stated that as per the
direction of D.G.M (EnfI). a raid/inspection was conducted on
BRPL Vs . Dinesh & Anr. CC No. 420/09 page 2
29.01.2009 at around 12.10 Hrs at the premises bearing No. A78,
Ground Floor, WZ306A, Hari Nagar, New Delhi110064
(hereinafter referred as subject premises) by the joint inspection
team of the complainant company comprising of Sh. Surender
ChaudhanA.M.Enf., Sh. Dhiraj KumarGET, Enf. and Sh. Raju
PandeyDET. Enf. And inspection team was headed by SH.
Surender ChauhanAM. It is also stated that the accused no. 1
was the user and accused no. 2 was the registered consumer of
electricity supplied at the subject premises and during the
inspection, following observations were made: (a) The inspection
team found a threephase meter bearing No. 27023080
(hereinafter referred as subject meter) at the site (ii) The meter box
seals, terminal seals, meter half seals, ultrasonic welding and
hologram seals of three phase whole current meter bearing No.
27023080 installed for that connection were found intact and
CMRI data of the meter was downloaded. The accuracy check
with duly calibrated standard Accucheck instrument in the
BRPL Vs . Dinesh & Anr. CC No. 420/09 page 3
presence of consumer/accused. The meter was found 13.16%
slow. (c) Accordingly, the meter was opened at site in the
presence of consumer/ accused and current reading was found
352.9 KWH, 2335.7 KVAH and PF 0.3. The display did not show
MD, Vr238.6V, Vy229.9 KV, Vb231.IV AND Lr14.8A, Ly14.4a ,
Lb8.544. IR No. 101521 dated 29.01.2009 was pasted on the
tampered meter to maintain statusquo.
The meter was seized in vide bag No. 244848 and bag seal
No. 2212284 in the presence of consumer/accused and sent to
laboratory for further analysis. Hence, declared that the case
would be finalized after the lab Report and the analysis of the
CMRI data. The inspection team called the division staff for
maintaining the supply of the accused premises. It is also stated
that the total connected load has been assessed by the inspection
team as 31.016 KW/DAE/IX It is also stated that Inspection report
alongwith meter detail report, connected load seizure memo were
prepared at the time of inspection. It is also stated that necessary
BRPL Vs . Dinesh & Anr. CC No. 420/09 page 4
videography showing the irregularities was taken by Sh. J.P. of
M/s Arora Photo Studio with the help of the member of the raiding
team through digital camera. It is also stated that the subject
meter was sent to the lab for testing under the intimation of the
accused that they may witness the testing process in person and
the accused appeared on the schedule date and subject meter
was tested in the presence of accused and lab vide its report No
BRPL/X9/2564 dated 12.02.2009 (wherein the report was tested
by Sh. Jayan Joseph and approved by Sh. Anuj Kumar Verma)
concluded that this was a case of abnormal shut down of the
meter, done for purpose of manipulating the consumption.
Accordingly, a show cause notice for DAE was sent to the accused vide
letter dated 01.06.2009 to file his reply by 10.06.2009 and to appear for
a personal hearing on 16.06.2009 before the assessing officer of the
complainant company and DineshUser submitted a reply dated
10.06.2009to the show cause notice and also attended the personal hearing and made his submissions. It is also stated that BRPL Vs . Dinesh & Anr. CC No. 420/09 page 5 accordingly, the Assessing Officer after examining the record and evidence as available and on the basis of lab report, passed a Speaking Order on 16.07.2009 and it was concluded that there was conclusive proof of DAE being detected at the time of inspection. It is also stated that the accused were using electricity illegally, by drawing the same dishonestly, from the complainant company's system. Consequently, an amount of Rs. 15,38,265/ is payable to the complainant by the accused for a wrongful abstraction, consumption, theft and use of electricity and the complainant company has assessed a civil liability of Rs. 15,38,265/ against the accused. It is also stated that accused has not paid the same till today. Hence, the present complaint case.
3). The complainant company led the pre summoning evidence. Vide order dt. 08.04.2010, accused persons were summoned to face the trial for the offence U/s 135 of the BRPL Vs . Dinesh & Anr. CC No. 420/09 page 6 Electricity Act, 2003.
It is also to note here that vide order dated 12.01.2011 notice U/s 251 Cr.P.C., had been served upon the accused persons for the offence punishable U/s 135 and 138 of the Electricity Act, 2003 to which accused persons 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. Sh. Surender ChauhanManager, PW02Sh. Ritu RajManager, PW03Sh.Anuj KumarDGM, PW04Sh. Binay Kumar, AR and PW05Sh.Jai Prakash.
5). PW1 Sh. Surender ChauhanManager testified that on 29.01.2009, at around 12 Noon, he alongwith Sh. Raju Pandey DET, Sh. Dheeraj KumarGET and photographer from M/s Arora Photo Studio and one lineman visited the premises of M/s BF Flour Mills, A78 Ground Floor, Hari Nagar, New Delhi to carry out BRPL Vs . Dinesh & Anr. CC No. 420/09 page 7 inspection. During the inspection, they found that a three phase meter NO. 27023080 was found installed at he site. At the site, they met Mr. Dinesh Kumaruser of the premises and informed him that they had come to conduct inspection of the premises. The witness correctly identified the accused no. 1Dinesh Kumar present in the Court that day. They, thereafter, checked the meter No. 27023080 with the help of standard accuracy check machine in the presence of the accused and found that the meter was slow by approximately 13%. After that they checked the parameters of the meter as well as of the seal. The seals were found intact. They, thereafter, opened the meter box and the meter in the presence of the accused noted down the parameter of the meter i.e reading, voltage, current and maximum demand. Thereafter, they downloaded the CMRI data of the meter at the site. Thereafter, in the presence of the accused, they noted the connected load of the premises which was being run for the flour mill and the said flour mill was running continuously. The total BRPL Vs . Dinesh & Anr. CC No. 420/09 page 8 connected load which was noted and found existing at the site appprox. 31 KW. The workers and the accused present at site informed that the flour mill was running day and night. The entire inspection was videographed by the photographer who accompanied with them at the site. The meter in question was seized as per the seizure memo and the officials of MMG department were called to replace the meter in question with the new meter. The meter in question was seized and sealed in a bag and were sent to the BRPL laboratory for further analysis.
At that stage, with the permission of Court, the material evidence was produced which was in a sealed bag No. 244848 and bearing seal No. 223368 BRPL. The meter bearing No. 27023080 was taken out from the bag to which the witness correctly identified and the same was Ex. P1. They at the time of the inspection prepared the meter detail report, inspection report and load report interalia giving the details of the inspection and the connected load at the premises which were already Ex. BRPL Vs . Dinesh & Anr. CC No. 420/09 page 9 CW2/A (colly) EX. CW2/B (colly) bearing his signature at point A on the inspection report & B on the load report. The seizure memo prepared at site was already Ex. CW2/C bearing his signature at point X. At that stage, with the permission of the Court the compact disc containing the videography of the inspection was opened and played on the computer to which the witness correctly identified the inspection carried out as shown in the videography as well as the presence of the accused at site during the inspection. The said compact disc containing the videography was already Ex. CW2/D. The inspection documents were handed over to the accused no. 1 present at site who refused to acknowledge the same. Thereafter, the meter under the sealed bag was sent to the lab for further analysis and the inspection documents were submitted to the office of the complainant company for futher action.
BRPL Vs . Dinesh & Anr. CC No. 420/09 page 10
6). PW2Sh. Ritu Raj SinhaManager testified that an inspection of K. No. 26100A140029 was conducted by authorized inspection team on 29.01.2009 where upon it was found that meter was 13.16% slow and meter was subsequently seized and sent to lab under the intimation to the consumer to witnessed the testing of the meter. Subsequently, meter was tested and lab test report was prepared which was Ex. CW2/E (already exhibited).On the basis of which a sow cause notice was sent to the consumer. The show notice was Ex. CW2/F (already exhibited). The consumer was asked to explain the irregularities found in the meter bearing No. 27023080. The consumer was asked to file its reply on 10.06.2009 and to appear for personal hearing on 16.06.2009 and in his reply to the show cause notice Ex. CW2/F (already exhibited), the consumer filed its reply which was already Ex. CW2/G. The consumer also attended personal hearing on 16.06.2009 and denied the awareness of meter tampering proceedings as recorded on 16.06.2009 was already Ex. CW2/H. Based on the inspection report, lab report, personal hearing, consumer's reply and consumption pattern, speaking order dated 16.07.2009 already Ex. CW2/I was passed and it was BRPL Vs . Dinesh & Anr. CC No. 420/09 page 11 held that the consumer/accused was guilty of offence as inumerated/defined under Section 135 and 138.As per lab report, billing history was triggered three times as found in history 11, 8 and 3. Main energy got zero three times as found in history 3, 8 and 11. Maximum Demand history was also found missing. Upon assessing of consumption pattern, it was also found meter showing an average recorded consumption of 1587.95 units per month which was 11.85% of the assessed consumption.
7). PW3Sh. Anuj KumarDGM testified that on 12.02.2009, he was posted at laboratory at Pushp Vihar as Senior Manager of the BRPL. They received meter bearing No. 27023080 in a sealed bag. The said meter was handed over to Sh. Jayan Joseph (meter testor) on 12.02.2009. The testing of the meter in question was conducted by Sh.Jayan Joseph under his supervision and presence. During the testing of meter, it was observed that plastic seal of the meter was not present, hologram BRPL Vs . Dinesh & Anr. CC No. 420/09 page 12 seal was OK. The IR was pasted on the meter in question. Thereafter, the meter was tested functionally and it was observed that the LED and LCD of the meter in question was okay. Meter was downloaded by auxiliary 5 volt supply and after downloading the data it was observed that billing action was triggered in thrice in a month. They also observed that energy register was also found to be reset three times. The MD (Maximum demand) data of the meter in question was missing from the downloaded data. On the basis of this downloaded data it was concluded that this was the case of abnormal burnt shut down of the meter done for manipulating the consumption of the meter. After the testing of the meter, the laboratory report dated 12.02.2009 prepared by Sh.Jayan Joseph and was approved by him. The said laboratory was already EX. CW2/E (colly) and bears his signature at point "A". The downloaded data was EX. PW3/A (colly). The entire testing of the meter was done under the presence of the consumer or its representative which bears the signature at point "B" of the BRPL Vs . Dinesh & Anr. CC No. 420/09 page 13 laboratory report. After the testing of the meter, the meter was re sealed in the presence of the consumer or his representative.
08). PW5Sh. Binay KumarAR testified that the present case had been filed by the predecessor authorized representative namely Sh. Ashutosh Kumar (ManagerLegal). He had been authorized by company vide authority letter dated 18.08.2009 which was already Ex.CW1/B. He could identify his signature at point A in the complaint Ex. CW1/A. His authority letter dated 23.10.2006 which was Ex. PW4/A which bears his signatures at pointA. He had no personal knowledge of the case. The present complaint had been filed as per the records provided by the complainant company. He had never visited the premises in question.
09). PW5Sh. Jai PrakashVideographer testified that on 29.01.2009, he accompanied with team members i.e. Sh. BRPL Vs . Dinesh & Anr. CC No. 420/09 page 14 Surender Chauhan (AM), Sh. Dhiraj Kumar (GET) and Sh. Raju Pandey (DET) in the inspection conducted at A78, Ground Floor, Hari Nagar, New Delhi. He conducted videography at the site. After conducting the videography, he handed over the camera to Sh. Vivek Aroraowner of the Arora Studio who downloaded the videography into the compact disk in his presence. He could identify the videography conducted at the inspected premises if shown to him. The witness correctly identified the contents of the CD as the same conducted at the site. The CD was already exhibited as Ex. CW2/D and certificate U/s 65B of Indian Evidence Act was Ex. PW5/1.
10). Statement U/s 313 Cr.P.C, of both accused persons had been recorded in which they had denied the allegations against them and accusedDinesh stated that the officials of the complainant company came to subject premises to change the meter. He admitted that he met with the officials of the BRPL Vs . Dinesh & Anr. CC No. 420/09 page 15 complainant company. He also stated that in his presence, the meter installed at site was not checked through accucheck machine and the officials of the complainant company only removed the meter installed at the site and taken the same alongwith them. He also stated that the connected load was wrongly assessed. The connected load was about 2 to 5 KW. No workers were present at the site. He had also not informed that flour mill was running day and night. He also stated that no videography was conducted in his presence. It is also stated that meter bearing No. 27024214 installed at the site which was removed and replaced with new meter and and PW01 had wrongly identified the meter, as the seized meter was meter bearing No. 27024214 and not the meter bearing No. 27023080. He also state that no reports were prepared in his presence. He also stated that he did not know which meter was tested in the lab and he was present at the laboratory, however meter was not tested in his presence as he was directed to sit in the corner of the BRPL Vs . Dinesh & Anr. CC No. 420/09 page 16 room and after testing the meter, he was told that the meter was Ok. Show cause notice was served to him. He also stated that he had received the copy of the speaking order. He also stated that he was innocent and had not committed any offence of meter tampering and he has been falsely implicated in the present case.
AccusedSmt. Vinod Kumari also stated that the officials of the complainant company came to subject premises to change the meter. She also stated that she was not present at the site of the premises at the alleged date of inspection and the connected load was wrongly assessed by the inspection team. She also stated that no videography was conducted in her presence as she was not present at the site during the inspection and meter bearing No. 27024214 installed at the site which was removed and replaced with new meter. She also stated that PW1 wrongly identified the meter as the seized meter was meter bearing No. 27024214 and not the meter bearing No. 27023080 and no reports were prepared in her presence and no videography was BRPL Vs . Dinesh & Anr. CC No. 420/09 page 17 conducted in his presence. She also stated that she did not know which meter was tested in the lab but she was told that the meter was Ok. Show cause notice was served to her. She also stated that her son who is coaccused in this case had received the copy of speaking order.
11). I have heard the arguments and perused the material available on record as well as relevant provisions.
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 BRPL Vs . Dinesh & Anr. CC No. 420/09 page 18 Post.
It is to note here that as per the testimony of PW01 Surender Chauhan, the inspection documents were handed over to the accused no. 1 present at site who refused to acknowledge the same and thereafter, the meter under the sealed bag was sent to the lab for further analysis and the inspection documents were submitted to the office of the complainant company for further action. It is worthwhile to mention here that PW01 did not testify regarding pasting of the inspection document on inspected premises and sending the same through registered post.
It will not be out of place to mention here that perusal of alleged inspection report i.e. Ex. CW2/A (colly), it is found that nowhere it has been mentioned that the inspection reports were offered to consumer and he refused to accept the same & did not allow to paste the same.
Here, it is said that testimony of PW01 is after thought just BRPL Vs . Dinesh & Anr. CC No. 420/09 page 19 to fill up the lacuna because same facts have not been mentioned in the Inspection Report. Had it so, it would have mentioned in Inspection Report Ex. CW2/A(colly).
It is to note here that no document has been proved on record that the accused persons had been served the inspection report through registered post.
Hence, here view of the Court is that the complainant company failed to prove that the alleged abovesaid documents were ever served upon the accused persons.
So, in light of abovesaid regulation, complainant company failed to prove that it has complied with the abovesaid regulation.
It is also to note here that as per the complainant, the raiding team consisted of (I) Sh. Surender ChouhanAMEnf. (ii) Sh. Dheeraj KumarGETEnf.(iii) Raju PandeyDETEnf. but as per the testimony of PW01, the raiding team consisted of i) Sh. Surender Chouhan (ii) Sh. Dheeraj KumarGET(iii) Raju Pandey BRPL Vs . Dinesh & Anr. CC No. 420/09 page 20 DET and one lineman.
Here, view of the Court is that there is material contradiction in the complaint of the complainant and testimony of PW01. One the one hand, as per the complaint, there were only three members in the alleged inspection team while as per the testimony of PW01, there was lineman besides three members.
It is also worthwhile to mention here that perusal of the inspection report Ex. CW2/A (colly), it is found that only three signatures are appearing.
Here, it is said that had lineman was also present with the team members then what stopped him to sign the inspection report in view of Regulation 52 (ix) of Delhi Electricity Supply Code and Performance Standards Regulation, 2007.
The provision of Regulation 53 (ii) of Delhi Electricity BRPL Vs . Dinesh & Anr. CC No. 420/09 page 21 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 PW 02Sh. Ritu Raj Sinha, in response to the a show cause notice, the consumer filed his reply and also attended the personal hearing on 16.06.2009 and based on the inspection report, lab report, personal hearing, consumer's reply and consumption pattern, speaking order dated 16.07.2009 BRPL Vs . Dinesh & Anr. CC No. 420/09 page 22 already Ex. CW2/I was passed.
Here, view of the Court is that the alleged speaking order dated 16.07.2009 Ex. CW2/I should have been passed within three days from the date of personal hearing i.e. 16.06.2009 but same was passed on 16.07.2009 i.e. after the gap of one month. No reason assigned for the delay in passing the speaking order. Hence, the complainant company has not complied with the aforesaid regulation.
It is also to note here that as per the complaint, the meter was seized in vide bag No. 244848 and bag seal No. 2212284 in the presence of consumer/accused and sent to laboratory for further analysis. As per the testimony of PW03, they received meter bearing No. 27023080 in a sealed bag and testing of the meter in question was conducted by Sh. Jayan Joseph under his supervision and presence. He also testified that after testing of the meter, the laboratory report BRPL Vs . Dinesh & Anr. CC No. 420/09 page 23 dated 12.02.2009 prepared by Sh. Jayan Joseph and was approved by him. The said laboratory report was already Ex. CW2/E (colly) and bear his signature at point-A. It is relevant to pen down here that perusal of Ex. CW2/E (colly), it is found that it is mere photocopy of the alleged lab report on which PW03 relied upon.
More so, perusal of photocopy of alleged laboratory report Ex. CW2/E (colly), it is found that bag No. 244848 and bag seal No. 221284 have been mentioned while as per the complaint, bag no. was 244848 and bag seal number was 2212284.
Here, view of the Court is that there is contradiction in the complaint and Ex. CW2/E regarding bag seal number as stated above which in view of the Court is material contradiction. It is further view of the Court is that difference of bag seal BRPL Vs . Dinesh & Anr. CC No. 420/09 page 24 number creates doubt which certainly goes against the complainant company.
In the case of Anvar P.V vs P.K Basheer & Ors. (2014) 10 SCC 473, Civil Appeal No. 4226/2012, decided by Supreme Court on 18/09/2014, it was held by three Judges Bench of Supreme Court that any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65A of said Act, can be proved only in accordance with the procedure prescribed under Section 65B of said Act; Section 65 B deals with the admissibility of the electronic record and the purpose of these provisions is to sanctify a secondary evidence in electronic form, generated by a computer. It was also held that electronic records are more susceptible to tampering, alteration, transposition, excision, etc., so without safeguards taken to ensure the source and authenticity, the whole trial based on proof of electronic records can lead to travesty of justice. Also was held that the BRPL Vs . Dinesh & Anr. CC No. 420/09 page 25 Evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if requirements under Section 65B of The Evidence Act are not complied with. Following are the four specified conditions under Section 65B (2) of the Evidence Act: (i) the electronic record containing the information should have been produced by the computer during the period over which the same was regularly used to store or process information for the purpose of any activity regularly carried on over that period by the person having lawful control over the use of that computer; (ii) the information of the kind contained in electronic certificate record or of the kind from which the information is derived was regularly fed into the computer in the ordinary course of the said activity; (iii) during the material part of the said period, the computer was operating properly and that even if it was not operating properly for some time, the break or breaks had not affected either the record or the accuracy of its contents; and (iv) the information contained in the record should be a reproduction or derivation from the BRPL Vs . Dinesh & Anr. CC No. 420/09 page 26 information fed into the computer in the ordinary course of the said activity. It was also held in aforesaid precedent that under Section 65B (4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied: (a) there must be a certificate which identifies the electronic record containing the statement; (b) the certificate must describe the manner in which the electronic record was produced; (c) the certificate must furnish the particulars of the device involved in the production of that record; (d) the certificate must deal with the applicable conditions mentioned under Section 65B (2) of the Evidence Act; and (e) the certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device. It was also held in aforesaid precedent that the evidence relating to electronic record, being a special provision, the general law on secondary evidence under Section 63 read with Section 65 of The Indian Evidence Act shall yield to BRPL Vs . Dinesh & Anr. CC No. 420/09 page 27 be same; Generalia specialibus non derogant, special law will always prevail over the general law. It was also held that Section 63 and 65 of The Indian Evidence Act have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by Sections 65A and 65B of The Indian Evidence Act, so to that extent, the statement of law on admissibility of secondary evidence pertaining to electronic record, as stated by the Supreme Court in case of State (NCT of Delhi) vs. Navjot Sandhu alias Afsan Guru, (2005) 11 SCC 600 does not lay down the correct legal position, which requires to be overruled and was accordingly overruled. It was also held that an electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65B of The Indian Evidence Act are satisfied. It was also held that in the case of CD, VCD, chip, etc., the same shall be accompanied with the certificate in terms of Section 65B of The Indian Evidence Act obtained at the time of taking of document, without which, the BRPL Vs . Dinesh & Anr. CC No. 420/09 page 28 secondary evidence pertaining to that electronic record, is inadmissible.
Now coming to the fact and circumstances of the case. As per the testimony of PW05Sh. Jai Prakash, on 29.01.2009, he accompanied with inspection team members and he conducted the videography at the site and after conducting the videography, he handed over the camera to Sh. Vivek Aroraowner of the Arora Studio who downloaded the videography into the compact disk in his presence. During crossexamination, he stated that he signed the certificate U/s 65B of Indian Evidence Act Ex. PW5/1 yesterday or day before yesterday when BSES officers asked him to sign. Contents of the Certificate U/s 65B (4) (C) of the Evidence Act, 1872 are reproduced herein:
"It is certified that the Compact Disc has been produced form computer system which contains videography of theft of Electricity recorded BRPL Vs . Dinesh & Anr. CC No. 420/09 page 29 during the inspection dated 29.01.2009, Conducted at A-78, Ground Floor, WZ-306, Hari Nagar, New Delhi. The Contents of the CD are true reproduction of the original to the best of my knowledge and belief."
In view of above, view of the Court is that it is said that Certificate given Ex. PW5/1 does not fulfill the pre requisites condition as observed in case titled as Anvar P.V vs P.K Basheer & Ors. (2014) 10 SCC 473, Civil Appeal No. 4226/2012. Therefore, the Compact Disk Ex.CW2/D is of no help for the case of the complainant company.
It is also worthwhile to mention here that alleged person namely Vivek Arora to whom PW05 allegedly handed over the camera and who allegedly downloaded the videography into the compact disk has not been examined by the complainant company. Had, the complainant company examined him, the accused persons definitely would have got the opportunity to BRPL Vs . Dinesh & Anr. CC No. 420/09 page 30 crossexamine him.
In light of of above, view of the Court is that the complainant company failed to prove the videography as per law. Therefore, alleged compact disc is of no help for the case of complainant company as stated earlier.
In this case, the inspection team has not joined the independent public persons during inspection. PW1 did not testify regarding joining of any public witness. 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 been joined in the inspection,. There is also nothing on record to suggest that there was non availability of public persons in the vicinity of the premises. Therefore, nonjoining of the public persons during inspection also goes against the complainant company.
As per the testimony of PW01Sh. Surender Chauhan BRPL Vs . Dinesh & Anr. CC No. 420/09 page 31 Manager, there were four members of the alleged inspection team including lineman. It is very relevant to pen down here that complainant company examined only one member out of alleged four members of alleged inspection team. Had, the complainant company examined remaining other alleged members of the alleged inspection team, the accused persons definitely would have got the opportunity to crossexamine them.
In view of abovediscussion, the complainant company has failed to prove the offence alleged against both accused persons namely Dinesh and Vinod Kumari beyond reasonable doubt in the present case. Thus, the accused namely Dinesh and Vinod Kumari are entitled for acquittal. Accordingly, accused namely Dinesh and Vinod Kumari are acquitted for the offence punishable Under Section 135 and 138 of the Electricity Act, 2003. Bail bonds of the accused persons stand canceled and their respective sureties are also discharged. Amount, if any, deposited by the accused persons as a condition for bail or in pursuance to BRPL Vs . Dinesh & Anr. CC No. 420/09 page 32 interim order of the court qua the theft assessment bill raised by the company on the basis of alleged inspection dated 29.01.2009 be released by the complainant company after expiry of the period of appeal. It is to note here that bail bonds U/s 437 (A) Cr.P.C. of both accused persons have been furnished and accepted. File be consigned to record room after due compliance. Digitally signed by REKHA
REKHA Date: 2018.10.26
17:16:23 +0530
Announced in open court (Rekha )
on day of 26th October, 2018. ASJ(Special Court)Electricity, Tis Hazari Courts, Delhi BRPL Vs . Dinesh & Anr. CC No. 420/09 page 33 BRPL Vs . Dinesh & Anr. CC No. 420/09 page 34