Delhi District Court
Through Shri Binay Kumar vs . on 21 December, 2018
IN THE COURT OF MS REKHA,
ADDITIONAL SESSIONS JUDGE, (SPECIAL COURT)
ELECTRICITY, CENTRAL DISTRICT, TIS HAZARI COURT,
DELHI
CC No. 488/12
New case No. 326058/16
U/s 135 and 138 of Electricity Act, 2003
BSES Rajdhani Power Ltd.,
A company duly incorporated under the Companies Act, 1956
Having its Registered office at:
BSES Bhawan, Nehru Place,
New Delhi110019
And
Corporate, Legal and Enforcement Cell
At Andrews Ganj, Next to Andrew Ganj Market,
New Delhi110049
Through Shri Binay Kumar,
its Authorized Officer ......................Complainant
Vs.
1) Smt. Ashok Aggarwal (User)
S/o Sh. R.L. Aggarwal
2. Rameshwar Dayal (R/C)
Both at:
K50 (D1C/2A), Kh. No. 13/18 (Near Pole No. NGL C623),
(Near Narayan Dharamshala), Aman Puri, Nangloi,
New Delhi41 ..............Accused persons
BRPL Vs . Ashok Aggarwal CC No. 488/12 page 1
Date of Institution : 06.08.2012
Date of Judgment : 21.12.2018
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 OfficerSh.
Binay Kumar. It is also stated that one single phase electronic meter
No. 27128444 (hereinafter referred as subject meter) was installed
against the K. No. 26300A01 4650 (hereinafter referred as subject
connection) was replaced with the new electronic meter bearing No.
BRPL Vs . Ashok Aggarwal CC No. 488/12 page 2
27145279 on 09.04.2011 and subject meter was sent to the NABL
accredited meter testing laboratory in sealed condition for further
testing/analysis under intimation to consumer that he may witness
the testing/analysis of the meter in the lab and as per the lab
BRPL Energy Meter Test/Analysis Report No. BRPL/11/12935
dated 14.09.2011, plastic and hologram seals found burnt, meter
found abnormal burnt, meter LCD and Led found ok, meter
number could be identified and in conclusion, the laboratory
declared that meter found abnormally burnt. It is also stated that
on the basis of meter testing report, an inspection was conducted
on 24.10.2011 at the premises bearing No. K50 (D1C/2A), KH.
No. 13/18, (Near Pole No. NGL C 623), (Near Narayan
Dharamshala), Aman Pur, Nangloi, New Delhi41 (hereinafter
referred as subject premises) by the joint inspection team of the
complainant company comprising of Sh. Sumeeet AroraA.M., Shri
Sandeep SharmaDET and Sh. Hakim SinghLineman. It is also
stated that during inspection, the load of 38.843 KW for non
BRPL Vs . Ashok Aggarwal CC No. 488/12 page 3
domestic purpose (Card Board Making Unit) use was found
connected against the sanctioned load of 11 KW under Non
domestic category. It is also stated that the inspection team also
prepared inspection report, Inspection Report (meter details), load
report and seizure memo, EEM Receipt. It is also stated that
necessary videography/photography of the connected load was
also taken by joint inspection team alongwith photographer from
M/s Aroar Photo Studio at site. It is also stated that show cause
notice dated 01.01.2011 and final show cause notice dated
30.11.2011 for suspected/dishonest Abstraction of Energy (in
short DAE) were issued to accused but accused/consumer did not
give any response. Hence, taking into consideration all the facts
and circumstances of the case and consumption pattern, the
Assessing Officer passed a Speaking Order dated 20.04.2012 and
it was concluded that there was a case of DAE. It is also stated
that the accused were using electricity illegally, by drawing the
same dishonestly, from the complainant company's system.
BRPL Vs . Ashok Aggarwal CC No. 488/12 page 4
Consequently, an amount of Rs. 6,03,136/ was raised but both
the accused failed to make the payment of DAE bill. It is also
stated that the accused no. 1 was found to be the user of the
subject connection while accused no. 2 was the registered
consumer of the subject connection and same could only have
been possible with the active connivance of the accused no. 2
and or only if she/he was involved in, or in any case, abetting the
commission of the theft of electricity. In fact, the accused were
found indulged theft of electricity. In given fact and circumstances
of the case, present complaint case has been filed.
3). The complainant company led the pre summoning
evidence. Vide order dt. 06.09.2013, accused persons were
summoned to face the trial for the offence U/s 135 of the
Electricity Act, 2003.
04) It is also to note here that vide order dated 27.05.2015
notices U/s 251 Cr.P.C., had been served upon the accused
BRPL Vs . Ashok Aggarwal CC No. 488/12 page 5
namely Ashok Aggarwal for the offence punishable U/s 135 & 138
of the Electricity Act, 2003 and accusedRameshwar for the
offence punishable U/s 135 & 138 R/w Section 150 of the
Electricity Act, 2003 to which both accused persons pleaded not
guilty and claimed trial.
05). In this case, the complainant company has examined
six witnesses, so as to prove its case namely PW1Sh. Sumeet
AroraSr. Manager, PW02Sh.Sandipan AdikariDGM, PW03
Sh.Vaishali Bansal, PW04B.V. Sivaram Krishna, PW05Sh
Rajesh AroraDGM and PW06Sh. Sandeep Sharma.
06). PW1 Sh. Sumeet Arora testified that on 24.10.2011 at
about 12.30 P.M., he alongwith team members namely Sh.
Sandeep SharmaDET, Sh. Hakim SinghL/M , Sh. Deepak
photographer from M/s Arora Photo studio visited at premises
bearing No. K50, D1C/2A, Khasra No. 13/18, Amanpuri, Nangloi,
BRPL Vs . Ashok Aggarwal CC No. 488/12 page 6
New Delhi and inspected the said premises against BRPL Lab
report No.BRPL 11/12935. During the inspection, one number
three phase whole current meter bearing meter No. 27145279
found installed at site in the name of registered consumer
Rameshwar Dayal and used by the consumer Sh. Ashok
Aggarwal S/o Sh. R.L. Aggarwal as stated. During the inspection,
inspection team officials observed and assessed the load of the
premises in question against the BRPL Lab Report, which was
found tobe 34.8 KW approx. for nondomestic purpose used for
cardboard making unit. The inspection team officials prepared
inspection report, load report, meter detailed report and seizure
memo at site which were already exhibited vide Ex. CW2/3 to Ex.
CW2/6 respectively which bears his signature at point A and
were offered to consumer to receive and sign the same which
was refused by the accused. The abovesaid reports were
submitted in the office of BRPL for further process. Necessary
videography was done at the premises in question by Deepak of
BRPL Vs . Ashok Aggarwal CC No. 488/12 page 7
M/s Arora Photo Studio and and the CD of the same was also
prepared. The videography was conducted at the time of
inspection and CD of the same was also prepared later on. The
compact disc (CD) as placed on record was already exhibited as
EX. CW2/12 which was the same as prepared at the site. Accused
no. 1 (Ashok Aggarwal) met the inspection team the site on the
date of inspection. After conducting the inspection they left the
site.
07). PW2Sh. Sandipan Adikari testified that he was working as
assessing officer in the complainant company on 20.04.2012.
Meter was removed by the MMT team and meter bearing No.
27128444 was further tested in the lab. As per lab report, meter
found abnormal burnt. On the basis of the lab report dated
14.09.2011, inspection reports dated 24.10.2011, he issued show
cause notice dated 01.11.2011 to the accused. However, none
appeared to attend the personal hearing, therefore, final notice
BRPL Vs . Ashok Aggarwal CC No. 488/12 page 8
was issued to the accused. The show cause notice was already
exhibited as Ex. CW2/8 & Ex. CW2/9 accused did not appear for
personal hearing.
Thereafter, on the basis of inspection report, lab report
and consumption pattern for the period of last one year as well as
considering other material documents, he passed the speaking
order dated 20.04.2012. The speaking order was already exhibited
as EX. CW2/10. He had also compared the consumption pattern
of new meter with the old removed meter and the consumption of
new meter was found increased. He also reached to the
conclusion that accused had tampered the meter in question.
08) PW03Vaishali Bansal testified that on 14.09.2011, she
was posted at BRPL lab, Pushp Vihar, Delhi as GET. On that day,
he received a sealed bag bearing no. 445234 with seal no. 23693.
He opened the bag in the presence of Sh. Bimal Mondal, Asstt.
Manager. On his visual observations, he found that the plastic
BRPL Vs . Ashok Aggarwal CC No. 488/12 page 9
seal, hologram seal of meter was burnt and meter was abnormally
burnt. During testing of the meter, the meter number could not be
identified as it was not visible due to burning of meter. Further,
accuracy of said meter was not done and data of the said meter
also could not be downloaded due to burning of the meter. From
all the above observations, he came to the conclusion that meter
in question was abnormally burnt.
She also stated that she could identify the case property, if
shown to her.
At that stage, one bag bearing no. 445234 having duly
sealed with seal bearing no. 83163BRPL was produced and
same was opened and out of it, one three phase electronic meter
in burnt condition was taken out. After seeing the said meter, the
witness stated that the meter was same, which was tested by her
in BRPL Lab at Pushp Vihar on 14.09.2011 and witness correctly
identified the meter in question.
The meter in question was then exhibited as Ex.P1.
BRPL Vs . Ashok Aggarwal CC No. 488/12 page 10
She also testified that she prepared Lab Report which was
then Ex. PW3/A and bears her signature at point A and signature
of Sh.Bimal Mandal at point B and she identified the signature of
Sh. Bimal Mandal as she worked with him. Thereafter, she re
sealed the meter in question in gunny bag and sent to the
concerned department of company.
09) PW04Sh. B.V. Sivaram Krishna testified that he had
received the case file of the present case from our concerned
department for preparation of theft bill. The details of the present
case were already uploaded in their system and he generated the
theft bill through system after crosschecking the details with the
file. The theft bill sent to the consumer through post. He also
testified that theft bill already Ex. CW2/11 was generated by him in
the present case which bears his signature at pointA.
10) PW05Sh. Rajesh Arora testified that he was authorized
BRPL Vs . Ashok Aggarwal CC No. 488/12 page 11
representative of the complainant company duly authorized by the
General Power of Attorney executed on 10.01.2018 by the CEO
namely Sh. Amal Sinha duly notorized with serial No. 251/18,
photocopy of the same which was selfattested was Ex. PW5/1.
Present complaint already EX. CW1/1 had been filed by Sh. Binay
Kumar which bears his signature at point A. He identified the
signature of Sh. Binay Kumar as he had seen him signing and
writing during the course of his employment with the complainant
company. Photocopy of the Authority letter dated 23.10.2006
issued in favour of Sh. Binay Kumar by the complainant company
was already Ex. CW1/2. The complaint was true and correct.
11) PW06Sh. Sandeep Sharma testified that on 24.10.2011
at about 12.30 P.M, he alongwith team leaderSumit Arora,
HakeemTechnician and Deepak Photographer visited and
inspected the premises bearing No. K50, D1/C2A, Khasra no.
BRPL Vs . Ashok Aggarwal CC No. 488/12 page 12
13/18, Aman Puri,Nangloi on the basis of lab report received by
team leader. They assessed the load which was found to be
34.843 KW for commercial purposes i.e. card board manufacturing
units. Thereafter, they prepared inspection report already Ex.
CW1/3, load report already Ex. CW1/5, meter details already Ex.
CW1/4 and offered the same but accusedAshok Aggarwal
refused to accept the same. The Ex. CW1/3, load report already
Ex. CW1/5, meter details already Ex. CW1/4 were prepared by Sh.
Sumit Arora which bears his signature at point A on each exhibits.
Thereafter, they returned to their office.
12). Statement U/s 313 Cr.P.C, of both accused persons
had been recorded in which they denied the allegations against
them. AccusedAshok Aggarwal stated that no inspection was
carried out on 24.10.2011 or any other day as alleged. Accused
Rameshwar Dayal stated that no alleged inspection was carried
out as per his knowledge and he was registered consumer of the
BRPL Vs . Ashok Aggarwal CC No. 488/12 page 13
meter installed at site. Both accused also stated that no inspection
report, load report, meter detail report and seizure memo were
prepared at site as no inspection was carried out on 24.10.2011
or any other day as alleged. They also stated that neither notices
Ex. CW2/8 and Ex. CW2/9 were given to them nor they had
received any speaking order. They also stated that PW03 was not
authorized to test the meter as alleged. They also stated that they
were not aware which meter was sent for alleged testing. They
were not even called to witness the alleged testing. Accused
Ashok Aggarwal stated that because of Shortcircuit, his entire
factory burnt including meter installed at subject premises and one
labour also passed away in that incident. An FIR was also lodged
regarding that incident. Both accused stated that they could not
say whether the meter was produced in the Court was tested by
PW03 or not and also stated that no alleged report was sent to
them and they were not aware of the proceedings done by PW03
regarding resealing of the alleged meter. They also stated that
BRPL Vs . Ashok Aggarwal CC No. 488/12 page 14
PW04 was not authorized to raise the bill as alleged and the
present complaint was false and had been filed against them to
extort the money that is why the person who signed the complaint
had not been examined. They also stated that they are innocent
and had been falsey implicated in this present case.
13). 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 the complaint, one single
phase subject meter was replaced by the MMG (Meter
Management Group) with a new electronic meter bearing No.
27145279 on 09.04.2011 and was sent to the NABL accredited
meter testing laboratory in sealed condition for further
analysis/testing under intimation to the consumer that he may
witness the testing/analysis of the meter in the lab.
It is very very relevant to pen down here that during cross
examination, PW03 stated that notice was issued to the
BRPL Vs . Ashok Aggarwal CC No. 488/12 page 15
consumer to present to witness the testing of meter on
25.04.2011 but consumer did not turn up for witnessing the
testing of meter, hence meter was not tested. There was no notice
to the consumer for 14.09.2011. She voluntarily said that as
consumer did not turn up on 25.04.2011, hence there was no
requirement for again issuing the notice to the consumer for
witnessing the testing of meter on following date.
It is to note that no person from the MMG department
has been examined by the complainant company who had
allegedly sent the alleged subject meter to the NABL laboratory
and by whom accused persons were allegedly intimated to
witness the alleged testing.
It is also relevant to pen down here that both accusedstated
during their statement U/s 313 Cr.P.C. that they were not aware
which meter was sent to the lab for alleged testing and they were
not even called to witness alleged testing.
BRPL Vs . Ashok Aggarwal CC No. 488/12 page 16
It is also to note here that no document has been proved on
record that the accused persons had ever been intimated to
witness the alleged testing of alleged subject meter in laboratory.
Here, it is said that complainant company failed to
prove that accused persons were ever intimated to witness the
alleged testing of alleged subject meter in the laboratory.
Here, view of the Court is that complainant company
should have called the accused persons to witness the alleged
testing of subject meter in the alleged lab.
It is also to note here that as per the complaint, one single
phase subject meter was replaced by the MMG (Meter
Management Group) with a new electronic meter on 09.04.2011
and subject meter was sent to the NABL accredited meter testing
laboratory in sealed condition for further analysis/testing. It is
relevant to pen down here that to identify the subject meter, no
person from the MMG department has been examined by the
BRPL Vs . Ashok Aggarwal CC No. 488/12 page 17
complainant company by whom, the alleged subject meter had
been allegedly sent to the NABL laboratory.
It is also relevant to pen down here that both accused
stated during their statement U/s 313 Cr.P.C. that they were not
aware which meter was sent to the lab for alleged testing.
Here, view of the Court is that witness from MMG
department should have been examined by the complainant
company who might have identified the meter which was allegedly
sent to the laboratory for testing/further analysis. Had, complainant
company examined the alleged persons from MMG department,
the accused persons would have definitely got opportunity to
crossexamine them. Nonexamination of the persons who
allegedly sent the subject meter to the alleged NABL accredited
laboratory certainly goes against the complaint company.
The provision of Regulation 52 (ix) of Delhi Electricity
Supply Code and Performance Standards Regulation, 2007, is
BRPL Vs . Ashok Aggarwal CC No. 488/12 page 18
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.
In the present case, as per the testimony of PW01
Sumeet Arora, the inspection team officials prepared inspection
report, load report, meter detailed report and seizure memo at site
which were already exhibited vide Ex. CW2/3 to CW2/6
respectively and offered to consumer to receive and sign the same
which was refused by the accused.
As per the testimony of PW06Sh. Sandeep Sharma, they
prepared inspection report already Ex. CW1/3, Load report already
Ex. CW1/5, Meter details already Ex. CW1/4 and offered to same
BRPL Vs . Ashok Aggarwal CC No. 488/12 page 19
but accusedAshok Aggarwal refused to accept the same.
It is very relevant to pen down here that PW01 and PW06
did not testify regarding pasting of the alleged inspection
document and sending the same through registered post in view of
abovesaid relevant regulations.
It is relevant to jot down here that during the statement
of accused U/s 313 Cr.P.C., both accused stated that no
inspection report, load report, meter detailed report and seizure
memo were prepared at site as no inspection was carried out on
24.01.2011 or any other day as alleged. They also denied that
they were offered any documents and they refused to accept the
same.
It will not be out of place to mention here that perusal
of alleged inspection report i.e. Ex. CW2/3, it is found that
nowhere it has been mentioned that the inspection reports were
pasted at site.
It is to note here that no document has been proved on
BRPL Vs . Ashok Aggarwal CC No. 488/12 page 20
record that the accused persons had been served the alleged
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.
In light of abovediscussion, view of the Court is that
the inspection team has not complied with the abovesaid
mandatory regulation, which certainly goes against the
complainant company. Thus, complainant company failed to prove
that reports were served upon the accused persons.
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
BRPL Vs . Ashok Aggarwal CC No. 488/12 page 21
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. Sandipan Adikari, on the basis of lab report dated
14.09.2011 and inspection report dated 24.10.2011, he issued
show cause notice dated 01.11.2011 EX. CW2/8 and another
final show cause notice Ex. CW2/9 to the accused but
accused did not appear for personal hearing and on the basis
of inspection report, lab report, consumption pattern as well
as other material documents, he passed the speaking order
dated 20.04.2012 Ex. CW2/10.
It is to note here that both accused persons during their
statement of accused U/s 313 Cr.P.C. stated that no notice
BRPL Vs . Ashok Aggarwal CC No. 488/12 page 22
Ex. CW2/8 and Ex. CW2/9 were given to them and they had
not received any speaking order.
It is very relevant to pen down here that during the
crossexamination, PW2 stated that he had sent the notices
Ex. CW2/8 and Ex. CW2/9 through speed post but admitted
that no postal receipt was placed on record by him.
It is to note here that no document has been
proved on record that accused persons had been served
upon the abovementioned show cause notices.
In light of abovesaid, it is said that accused persons
were not given opportunity of being heard before passing the
alleged speaking order and speaking order is based only on
alleged records.
Furthermore, it is very relevant to pen down here that
perusal of Ex. CW2/9 shows that date of personal hearing is
15.12.2011 and Perusal of Ex. CW2/10 shows that date of
BRPL Vs . Ashok Aggarwal CC No. 488/12 page 23
alleged speaking order is 20.04.2012.
Here, view of the Court is that the alleged speaking
order dated 20.04.2012 Ex. CW2/10 should have been
passed within three days from the date of personal hearing
i.e. 15.12.2011 but same was passed on 20.04.2012 i.e. after
the gap of more than four months. No reason assigned for
the huge delay in passing the alleged speaking order. Hence,
the complainant company has not complied with the aforesaid
regulation.
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
BRPL Vs . Ashok Aggarwal CC No. 488/12 page 24
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
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.
In the present matter, as per complaint, as per the BRPL energy meter test/analysis report No. BRPL/11/12935 dated 14.09.2011, plastic and hologram seals found burnt, meter found abnormal burnt, meter LCD and LED found not ok, meter number could be identified and in conclusion, the laboratory declared that the meter found abnormally burnt.
As per the testimony of PW03, she prepared the lab BRPL Vs . Ashok Aggarwal CC No. 488/12 page 25 report which is Ex. PW3/A. It is very relevant to pen down here that perusal of Ex. PW3/A shows that in observation column, following observations have been mentioned: (1) Accuracy could not be done (2) Meter data could not be downloaded (3) Meter no. could not be identified.
It is very very relevant to pen down here that the reason column is lying blank In the conclusion column, it is written "meter found abnormal burnt". It is very relevant to pen down here that during the crossexamination, PW1 stated that on enquiry from the persons/labourers present at the site they told that the meter was burnt due to fire but he did not enquiry about the cause and intensity of the fire at premises. He also stated that he did not know whether a labourer died in the fire at the premises and an FIR bearing No. 95/2011 U/S 304A IPC, P.S. Nihal Vihar was got registered against the owner of the premises and said meter was burnt in that fire.
BRPL Vs . Ashok Aggarwal CC No. 488/12 page 26
It is to note here that accusedAshok Aggarwal during his statement of accused U/s 313 Cr.P.C. stated that because of Shortcircuit, his entire factory burnt including meter installed at subject premises and one labour also passed away in that incident. An FIR was also lodged regarding that incident.
It is very very relevant to pen down here that as per the crossexamination of PW03, she admitted that cause of burning of meter was detected while testing the meter in the lab that the meter was burnt by petrol, diesel, any chemical etc. and voluntarily said that it happen amongst one of thousand cases. She was questioned whether any smell of petrol, diesel, any chemical etc. was found in the meter in question at the time of testing in the lab, she replied in negative and voluntarily said that meter in question was tested after a long period of 05 months and it might be reason that there was no smell of petrol, diesel or any chemical. She also stated that she did not know whether any chemical test was conducted or not regarding the root cause of burning of the meter. BRPL Vs . Ashok Aggarwal CC No. 488/12 page 27
PW03 also admitted that there was no artificial means or object found in the meter in question.
Here, view of Court is that reason for burning of the subject meter should have been mentioned in the alleged lab report but the same has not been done which certainly goes against the complainant company.
In light of above, it is said that in the absence of any conclusive evidence, it cannot be concluded that subject meter was burnt by the accused persons as alleged.
It is also relevant to pen down here that as per the testimony of PW01Sh. Sumeet Arora, necessary videography was done at the premises in question by Sh. Deepak of M/s Arora Photo Studio and CD of the same was also prepared which was already Ex. CW2/12. It is also to note here that no alleged videographer namely Deepak of M/s Arora Photo Studio has been examined by the complainant company in this case.
Moreover, the complainant company has also not BRPL Vs . Ashok Aggarwal CC No. 488/12 page 28 relied upon the requisite certificate u/s 65B of the Indian Evidence Act, so as to prove the videography. Thus, the complainant company has failed to prove the videography in the present case in accordance with law. Therefore, the CD Ex. CW2/12 is 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. It is relevant to mention here that PW1 and PW06 did not testify that if any, efforts were made by the inspection team to join the public persons in the inspection. Further, in the inspection report Ex.CW2/1 also nothing has been mentioned that any efforts were made by the team to join the public persons in the inspection. Public persons should have been joined in the inspection. Therefore, nonjoining of the public persons during inspection also goes against the complainant company.
In view of abovediscussion, the complainant company BRPL Vs . Ashok Aggarwal CC No. 488/12 page 29 has failed to prove the offence alleged against both accused persons namely Ashok Aggarwal and Rameshwar Dayal beyond reasonable doubt in the present case. Thus, the accused namely Ashok Aggarwal and Rameshwar Dayal are entitled for acquittal. Accordingly, accused namely Ashok Aggarwal is acquitted for the offence punishable Under Section 135 & 138 of the Electricity Act, 2003 and Rameshwar Dayal is acquitted for the offence punishable Under Section 135 & 138 R/w Section 150 of the Electricity Act, 2003. Bail bonds of the both 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 interim order of the court qua the theft assessment bill raised by the company on the basis of alleged inspection dated 24.10.2011 be released by the complainant company after expiry of the period of appeal. BRPL Vs . Ashok Aggarwal CC No. 488/12 page 30 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: 2018.12.21
15:04:56 +0530
Announced in open court (Rekha )
on day of 21st December, 2018. ASJ(Special Court)Electricity, Tis Hazari Courts, Central Delhi BRPL Vs . Ashok Aggarwal CC No. 488/12 page 31