Delhi District Court
Bypl vs . M/S. Baljeet Engg. Works & Ors. on 13 March, 2015
CC No.26/08
BYPL Vs. M/s. Baljeet Engg. Works & Ors.
IN THE COURT OF SHRI ARUN KUMAR ARYA,
ADDITIONAL SESSIONS JUDGE, SPECIAL COURT
(ELECTRICITY), TIS HAZARI COURT, DELHI
CC No.26/08
Unique case ID No.02402R0027832009
BSES Yamuna Power Ltd.
Having its Registered office at
Shakti Kiran Building,
Karkardooma, Delhi-110032
(Through its authorized representative
Sh.Jitender Shankar ) ............ Complainant
Through : Sh. Jitender Shankar, AR with Sh. Nilesh
Kumar, Ld.Counsel for the company.
Vs
1. M/s.Baljeet Engg. Works
Through its proprietor/ partner
Plot No.8, Gali No.3, Anand Parbat, Delhi.
2. Gurbachan Singh
Plot No.8, Gali No.3, Anand Parbat, Delhi.
................ Accused
Through: Sh.V.K.Goel, Adv. for accused
Date of Institution : 07.01.2008
Judgment reserved on: 05.03.2015
Date of Judgment : 13.03.2015
Final order : Acquittal
JUDGMENT
1. The complainant is a company incorporated under the Companies Act, 1956 (to be referred as "company" hereinafter) having its registered office at Shakti Kiran Building, Page 1 CC No.26/08 BYPL Vs. M/s. Baljeet Engg. Works & Ors.
Karkardooma, Delhi-110032 having its branch office at different places in Delhi. The company is the licensee for supply of electricity in major parts of Delhi, including the premises of accused i.e Plot No. 8, Gali No.3, Anand Parbat, Delhi where the offence has been committed by the accused. The present case was filed through Sh. Jitender Shankar, Authorized Officer. Later on, Sh.C.B.Sharma, Sh. Rajeev Ranjan, Mukesh Sharma and Jitender Shankar were substituted as authorized representative by order of this court.
2. As per complaint, on 13.12.2006 at about 14.50 p.m., a team comprising of Sh.O.P.Rajput (Assistant Manager), Sh.C.M.Sharma (GET), Sh.Veersen Singh (Tr.Engg.), Sh.Dinesh and Sh.Ravinder (lineman) inspected the premises bearing Plot No.8, Gali No.3, Anand Parbat, Delhi. During inspection it was found by the team that accused no.1 was the registered consumer bearing connection no.14400141154W having its meter no.DVB02351 installed at premises and the accused no.2 was found using the electricity for industrial purpose. The team conducted the accu check of the meter and found that the meter was slow by 91.12%. The meter and CT box seals found tampered. The meter was segregated in the presence of accused no. 1 and Sh.M.M.Aggarwal and the team found no physical irregularity inside the meter. Thereafter Sh.Preetam Singh (Manager) called at site who seized the three phase CT electronic meter vide seizure memo prepared and signed at site. The inspecting team sent the three phase service meter with box to the lab for further investigation.
The total connected load which was illegally used by the accused for industrial purpose was assessed by the inspection team Page 2 CC No.26/08 BYPL Vs. M/s. Baljeet Engg. Works & Ors.
as 23.546 KW/IX/DAE against the sanctioned load of 40.05 KW. A load report was prepared at the time of inspection. The photographs showing the irregularities were also taken by the member of the inspecting team. The meter testing lab made a thorough investigation of the meter and submits its report to the company. The meter report dated 12.01.2007 along with the CMRI data was annexed.
The official of the company gave a show cause notice dated 13.03.2007 for dishonest abstraction of energy to accused and requested him to attend personal hearing. On 16.03.2007 accused attended the personal hearing and replied the show cause notice. Thereafter a speaking order dated 11.04.2007 was passed against the accused whereby a case of dishonest abstraction of energy was made against the accused. Since it was a case of dishonest abstraction of energy, a theft bill as per the DERC regulations and tariff was raised by the company for Rs.9,71,712/- with due date as 27.04.2007 was served upon the accused. On the failure of accused to deposit the same, present complaint was filed against him.
3. The accused was summoned U/S 135 of the Electricity Act 2003 (hereinafter to be referred as 'Act') by ld. predecessor of this Court as per order dated 24.01.2008 after recording the pre-summoning evidence. Notice u/s 251 Cr.PC was also framed against accused by ld. predecessor of this Court on 14.07.2009 to which accused pleaded not guilty and claimed trial.
4. Company in support of its case examined 5 witnesses namely PW-1 Sh. Rajeev Ranjan (Authorized Representative), PW-2 Sh.O.P.Rajput (Sr.Manager), PW-3 Sh.
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Veersen (Engg.), PW-4 Sh.Prasanjit (Assistant Manager) and PW-5 Sh.H.S.Semwal (GM). However, accused examined DW-1 Nikhil Kumar and DW-2 Bharat Singh in his defence.
PW-1 Sh. Rajeev Ranjan deposed that the present complaint Ex.CW-1/2 was filed by Sh.C.B.Sharma. He was authorized vide letter of authority in his favour Ex.CW-1/A. PW-2 Sh.O.P.Rajput deposed that on 13.12.2006 at about 2.45 PM a team comprising Sh. C.M Sharma (GET), Sh. Veer Sain (Trainee Engg.) Sh. Ravi Inder, Sh. Dinesh (both lineman) and himself on the instruction of Sh.Preetam Singh Manager Enforcement- I inspected the premises no. Plot no.8, Gali no. 3 Anand Parbat. When he visited the premises he found one IR was found pasted on existing CT meter. The IR was found intact and OK. The industrial load was running through the existing meter at the time of inspection. The CT meter was checked by Accu check machine and was found slow by 91%. After testing the meter was removed from the site and segregated in the presence of consumer but no visible irregularities was found in the meter. After that Manager Enforcement-1 Sh. Preetam Singh was called at site and as per his direction the meter was seized in presence of consumer and meter was sent to lab for further investigation to ascertain about dishonest abstraction of energy. After seizure, the meter was sealed with the seal of Manager Enforcement. The raiding team took the photographs (Ex.CW-2/8) of existing system and connected load to the possible extent. The true copy of the CD was Ex.CW-2/9. The seizure memo Ex CW-2/3 was prepared at site in the presence of the consumer and all activity convey to the consumer at site.
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The accused was given personal hearing but he refused to sign the same. The copy of show cause notice dated 13.12.2006 was Ex.PW-2/A. The inspection report Ex.CW-2/1 and load report already Ex.CW-2/2 bears his signatures at point A. Witness identified the case property i.e three phase CT electronic meters of ratio 100/5A and Meter bearing no. DVB02351. The three phase CT meter as Ex. P1.
PW-3 Sh.Veer Sen, deposed that on on the same lines of PW-2.
PW-4 Sh.Prasanjit, deposed that the three phase meter no.DVB-0351 was tested by Hitesh Sharma on 12.01.2007 in the laboratory and prepared the lab report Ex.CW2/4, which was approved by Devender Verma.
PW-5 Sh. H.S.Semwal deposed that on 13.03.2007, he was posted as Assessing Officer with the company. On that day, he issued a show cause notice for dishonest abstraction of energy to the consumer M/s Baljeet Engineering Works and user Sh.Gurcharan Singh. The registered consumer M/s. Baljeet Engineering Works has tampered the seals of CT box. The meter was found slow by 91.12% by the laboratory as Ex.CW-2/4. The show cause notice for personal hearing was sent by him as Ex.CW-2/5. On 16.03.2007, the consumer submitted his verbal submission before him during personal hearing. On 11.04.2007, he passed detailed speaking order EX.CW-2/6 and advised to raise a dishonest abstraction of energy bill for tampering the meter.
DW-1 Sh.Nikhil Kumar has placed on record the written Page 5 CC No.26/08 BYPL Vs. M/s. Baljeet Engg. Works & Ors.
submissions as Ex.DW1/A and the copy of public notice dated 01.08.2005 as Ex.DW1/B. DW-2 Sh.Bharat Singh has placed on record the consumption details for the period June 2002 till July 2009 as available in their system as Ex. DW2/A.
5. In his statement recorded u/s 313 Cr.PC, accused had denied the allegation and pleaded that the case of the company was false and fabricated.
6. Ld. Counsel for the accused argued that case of the company was fabricated. During cross examination, PW-2 admitted that they had written permission to inspect the premises, however, no written permission was filed on record. 4-5 persons gathered, however, nobody caused any obstruction during inspection. The accused present in the court was not present at site at the time of inspection. The company had filed only print out of the photographs of meter but no supporting chip was filed. He admitted that there was a report by KCC (Key Consumer Cell) department for testing the meter, however, no such report was on the judicial file. There is no photograph showing preparation of reports / seizure memo or show cause notice at site.
They did not call police or PCR when ShM.M.Aggarwal, representative of accused refused to accept or were not allowed to paste the reports at site. The fact of said refusal was also not mentioned in the inspection report. He did not study consumption pattern or analysis the CMRI data. He was not present at the time of Page 6 CC No.26/08 BYPL Vs. M/s. Baljeet Engg. Works & Ors.
personal hearing or laboratory testing. They measure current / load with the help of clip-on-meter, however, the value of current was not indicated in the inspection reports.
PW-5 admitted in cross examination that he did not study the consumption pattern after inspection. He admitted that as per CMRI cumulative tampered report, there was only power failure as tampering.
7 He further argued that Sh. Preetam Singh did not sign the inspection reports. Inspecting team illegally segregated the meter at site whereas the meter should have been sent to laboratory. The photographs were not proved and if the meter was slow by 91.12%, the consumption in future bills would increase to more than 11 times, however the same was not increased. As per recent judgment of Hon'ble High Court of Delhi in Narinder Aggarwal Vs. BRPL, W.P.No. 1789/11 it was held in para 19 of the judgment that consumption pattern after change of meter is also to be observed. In the present case the consumption patter has not been recorded after change of meter. Meter was not properly tested for accuracy.
As per lab report, meter with CT box accuracy was +2.36 % and meter test results are within limit. Lab report further stated that this may happen if connections are interchanged. Inspection report clearly stated that "No physical irregularity was observed inside the meter as admitted by PW-2 also. As per CMRI data also, there is no report of meter connections interchanged. If the connections were interchanged this would have been easily noticed during inspection by Page 7 CC No.26/08 BYPL Vs. M/s. Baljeet Engg. Works & Ors.
team members.
As per CMRI data, there is no tampering except "Power failed." and power failure cannot be termed as tampering. No notice for lab testing was given to the accused. Also no lab report was supplied to the accused before or even while granting personal hearing. No department personnel was present at the time of hearing. It was requested that company had failed to prove its case so, accused was entitled to be acquitted in this case.
8. Per contra, counsel for complainant has argued that the during inspection it was found by the team that accused no.1 was the registered consumer bearing connection no. 14400141154W having its meter no.DVB02351 installed at premises and the accused no.2 was found using the electricity for industrial purpose. The team found that the meter is slow by 91.12% and the meter and CT box seals found tampered. The meter was segregated in the presence of accused no. 1 and Sh.M.M.Aggarwal and found no physical irregularity inside the meter. Thereafter Sh.Preetam Singh (Manager) called at site who seized the three phase CT electronic meter vide seizure memo prepared and signed at site. The inspecting team sent the three phase service meter with box to the lab for further investigation. The meter testing lab made a thorough investigation of the meter and submits its report to the company. The meter report dated 12.01.2007 along with the CMRI data was annexed.
The total connected load which was illegally used by the accused for industrial purpose was assessed by the inspection team as 23.546 KW/IX/DAE against the sanctioned load of 40.05 KW. A load report was prepared at the time of inspection. The photographs Page 8 CC No.26/08 BYPL Vs. M/s. Baljeet Engg. Works & Ors.
showing the irregularities were also taken by the member of the inspecting team. The official of the company gave a show cause notice dated 13.03.2007 for DAE to accused and requested the consumer to attend personal hearing. On 16.03.2007 accused attended the personal hearing and replied the show cause notice. Thereafter speaking order dated 11.04.2007 was passed against the accused whereby a case of dishonest abstraction of energy was made against the accused. As per the testimonies of PW-2 Sh.O.P.Rajput (Sr. Manager), PW-3 Sh.Veer Sen (Engineer), PW-5 Sh. H.S. Semwal (Assessing Officer) the company has proved its case against the accused beyond reasonable doubt. Accordingly, accused is liable to be convicted in this case.
9. I have gone through the evidence adduced on record and considered the arguments of counsel for both parties.
10. It is admitted case of company that subject meter was segregated at the spot. Tampering is the main stay of the case of the company, so the meter is required to be sent to the laboratory for checking, however, in this case meter was segregated at the site at the first instance. Meter was not properly tested for accuracy. DERC had notified approved procedure for testing vide public notice dated 01.08.2005 (Ex.DW1/B). As per Delhi Electricity Supply Code and Performance Standards Regulations, 2007, Regulation 38(d), " the testing of meter shall be done for a minimum consumption of 1 kWh. Optical scanner shall be used for counting the pulses/revolution." PW-2 admitted that while actual testing, the inspecting team passed only 50 pulses instead of 400 pulses and only 1/8 unit was passed. As per judgment of R.E.S.B.Vs.M/s. Deepak Page 9 CC No.26/08 BYPL Vs. M/s. Baljeet Engg. Works & Ors.
Oils, AIR 1998 Rajasthan 176 it was held that where meter was never sent to laboratory for checking and without testing by any independent laboratory, no case of DAE can be booked and accordingly the impugned bill was quashed.
As per lab report, meter with CT box accuracy was +2.36 % and meter test results are within limit. Lab report further stated that this may happen if connections are interchanged. As per CMRI data also, there is no report of meter connections interchanged or tampering except "Power failed" and power failure cannot be termed as tampering. If the connections were interchanged this would have been easily noticed during inspection by team members as they are experts in the field. No notice for lab testing was given to the accused. No department personnel was present in the hearing. Also no lab report was supplied to the accused before or even while granting personal hearing. Thus, it can be safely concluded that personal hearing was not in accordance with principle of natural justice.
11. Inspection report clearly stated that "No physical irregularity was observed inside the meter as admitted by PW-2. Sh. Preetam Singh did not sign the inspection reports. The photographs were not proved. If the meter was slow by 91.12%, the consumption in future bills would increase to more than 11 times, however, the same was not increased. As per recent judgment of Hon'ble High Court of Delhi in Narinder Aggarwal Vs. BRPL, W.P.No.1789/11 it was held in para 19 of the judgment that consumption pattern after change of meter is also to be seen, however, in the present case the consumption patter has not been Page 10 CC No.26/08 BYPL Vs. M/s. Baljeet Engg. Works & Ors.
recorded after change of meter.
PW-2 did not study consumption pattern or analysis the CMRI data. At one point PW-2 admitted that photographer was present there and on another point he said videographer was not there at that time. He further admitted that the accused was not present at site at the time of inspection and M.M.Aggarwal the representative of accused, was present that time, however they did not examine M.M.Aggarwal who refused to accept the inspection report. They did not call police or PCR when he refused to accept or were not allowed to paste the reports at site. The fact of said refusal was not mentioned in the inspection report. PW-3 Veer Sen (Engineer) and PW-4 Sh.Prassanjit (Asstt. Manager) were not turned up for cross examination, so their statement has no evidentary value.
12. As per Regulation 25 (vii) Delhi Electricity Regulatory Commission (Performance Standards Metering and Billing) Regulations, 2002, the report must be signed by each member of the joint team. It is seen that the reports were not signed by Dinesh and Ravinder (both lineman). The non signing of the inspection report by all the members of raiding team clearly shows the non compliance of aforesaid rule. As per the recent judgment of Hon'ble High Court in 2012 (4) JCC 2713 titled as BSES Rajdhani Power Ltd. Vs. Sunheri & Ors., the non production of the Dinesh (lineman) who took photographs was held to be fatal to the case of the company.
The Compact disc (Ex.CW-2/9) placed on record is of no help to the company as the same was not proved in accordance with Page 11 CC No.26/08 BYPL Vs. M/s. Baljeet Engg. Works & Ors.
Section 65B of Indian Evidence Act. As per judgment of Hon'ble High Court of Delhi in Crl.L.P.No.173/2014 titled as BSES Yamuna Power Ltd Vs. Gyan Chand dated 15.04.2014, wherein it is observed that requisite certificate U/S 65-B is required to be produced in evidence in the court. Even if, no certificate was filed, the company could have proved the electronic record by leading secondary evidence under sub-clause ''d'' of section 65 of Evidence Act. (Achchey Lal Yadav Vs. State Crl.App.No. 1171/12 decided on 06.09.2014 Hon'ble High Court of Delhi).
13. This inspection was carried out on 13.12.2006 and the company was under obligation to carry a written authority signed by designated officer of the licensee as per Regulations 25(i) of the Delhi Electricity Regulatory Commission (Performance Standards - Metering and Billing) Regulations, 2002, which they failed to do and no such authority was placed on record either.
14. As per notification dated 17.05.2005 technical officer not below the rank of Executive Engineer / Manager could search, seize or remove all such devices used for unauthorized use of electricity. This nomination is to be complied under section 135 (2)(b) of the Indian Electricity Act. It is not brought on record as to who was the Authorized officer associated in the inspection / raid as per the above noted notification. No such explanation has been put forth by the company in this respect. Sh.O.P.Rajput (PW-2) was the Assistant Manager at the time of raid. This clearly implies that no such authorized officer was associated to seize the illegal material as per section 135 (2) of Electricity Act.
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15. This court has perused the speaking order which clearly shows that the alleged tampered meter was not produced before the assessing officer, so speaking order was passed without observing this meter.
16. It was not proved as to how alleged tampering with the internal mechanism of the meter could slow down the consumption without considering the past or later consumption pattern. PW-5 did not consider the consumption pattern of the consumer before concluding that the case of DAE was made out clearly violating the regulation 26 (ii) of the Delhi Electricity Regulatory Commission (Performance Standards Metering and Billing) Regulations, 2002. The sanctioned load of accused was 40.05 KW whereas connected load was 23.546 KW as per inspection dated 13.12.2006 and it is nowhere stated that such pattern was not available.
In the speaking order dated 11.04.2007 it was admitted by PW-5 that Gurcharan Singh attended the personal hearing on 16.03.2007 and submitted the written submission, however, written submissions made by him were missing in this order. A bare and non speaking pre-determined kind of order is totally violative of principle of natural justice.
17. As per recent judgment of Hon'ble High Court of Delhi in case of J.K.Steelomelt (P) Ltd. vs. BRPL WP(C) No. 2291/2005 decided on 24.04.2007 it was held that in order to establish DAE through conclusive evidence, it is incumbent on the respondent to show, not merely with the reference to the consumption Page 13 CC No.26/08 BYPL Vs. M/s. Baljeet Engg. Works & Ors.
pattern, but by some other tangible evidence that there has been the tampering with or access by the petitioner to the internal mechanism of the meter in a matter that would slow down the consumption.
18. As per judgment of the Supreme Court in Transmission Corporation of A.P. Ltd. and Ors. Vs. M/s. Sri Rama Krishna Rice Mills, II (2206) SLT 723=11 (2006) CLT 75 (SC) = AIR 2006 SC, 1445 it was held that in case of theft and pilferage of electricity, the service provider is under an obligation to provide reasonable opportunity which may extend to granting opportunity of cross examination of the officials who level the allegations. No such opportunity was granted by the assessing officer to the accused to examine or cross examine the member of raiding team.
19. The Hon'ble Supreme Court in Jagannath Singh vs. B.S.Ramaswamy (1996) 1 SCR 885 has held that the existence of artificial means for abstracting energy can only give rise to a presumption that there had been a dishonest abstraction. The supplier would still have to show that the consumer is responsible for such tampering,
20. I have perused the show cause notices dated 13.12.2006 issued by O.P.Rajput and 13.03.2007 issued by Sh.H.S. Semwal. The contents of both these notices are identical and instead of incorporating the exact allegations against the accused in the inspection reports, different possibilities / situations were given and accused was called to show cause and file a reply.
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Notice is not a ritualistic formality, the persons requiring to show cause has to be precisely informed, may be briefly the allegation upon which action is proposed. Thus, precise and unambiguous facts of allegations have to be mentioned in the notice. These notices clearly manifest non-application of mind by the officers of the company.
21. At the time of inspection, the officers of the company were not carrying any original monogram sample seals to compare with the seals affixed on the meter of the accused. The meter box seals and meter seal were found tampered, however, no photographs of tampered seals are shown in photographs.
22. Now a days, meter installed for consumers are electronic meters provided by companies like L&T Secure Meter, L&G, Genus and Caife. Admittedly these are digital computerized meters functioning with the support of a Base Computer Software, specially designed by the manufacturing company for the same. Such a software cannot be controlled by an external device unless such external device is fully compatible with the specially designed software and is loaded with the supporting software for external device. Unless specially designed software is known to a stranger, no one can place anything so as to make the computerized meter to function on the command of a stranger device. Learned counsel for company could not tell as to in what manner such a device could have worked without cracking the lock system of Base Computer Software. M/s. Modern Rice Mill Vs. MVVNL & Another in WRIT-C.No. 52054/10 by the Hon'ble High Court of Allahabad.
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The company even failed to reply that when during inspection no physical irregularity was observed inside the meter, than how the case of DAE was made against the accused.
23. A special Act created always have special measures to avoid its misuse by the investigating agencies, so bearing in mind this principle, Delhi Electricity Supply Code and Performance Standards Regulations, 2007 were formulated. These regulations have statutory force and as per regulation 52, 53 and 54 special measures were added to protect the interest of accused / consumer in case of theft of electricity. The procedure prescribed in the Act 2003 and the Code 2007 has to be adhered in words and spirit and deviation therefrom would vitiate the statutory orders passed therein. In the present case, as already discussed in the forgoing paras, there were violations in not adhering to the regulations prescribed in the Code 2007, thus it has a negative impact on the merit of this case. Reliance is placed on Ashok Kumar & Ors. Vs. State of U.P & Ors. 2008(6) ADJ 660 para 76.
24. Although a conviction can be safely based on the testimony of a single witness which seems trustworthy and reliable. In the present case, there are material contradictions in the testimony of PW2, PW-3 and PW-5. In order to connect the accused with the offence reliable evidence is required to be led by the company which show that the accused was involved in some overt act of tampering the meter. No public persons who were present at the site have been cited or examined as a witness while the meter was segregated. No other independent evidence has been examined in this case to prove that the accused was committing the theft. In the Page 16 CC No.26/08 BYPL Vs. M/s. Baljeet Engg. Works & Ors.
absence of the same it shall not be safe to connect the accused with the theft of electricity.
25. In view of the foregoing reasons, as the company has failed to prove the theft of electricity against the accused beyond reasonable doubt in the present case. The accused is accordingly acquitted. Bail bond of the accused stands canceled and surety discharged. Amount, if any, deposited by the accused as a condition for bail or in pursuance to interim order of any court qua the theft bill raised by the company on the basis of inspection dated 13.12.2006 be released by the company after expiry of period of appeal. File be consigned to record room.
Dictated and announced in open court (Arun Kumar Ayra) ASJ/Special Court (Elect.) Tis Hazari/Delhi/13.03.2015 Page 17 CC No.26/08 BYPL Vs. M/s. Baljeet Engg. Works & Ors.
13.03.2015 Present: Sh.Jitender Shankar, Authorized Representative with Ld.Counsel for the complainant company.
Accused on bail with Sh.V.K.Goel, Adv Vide separate judgment announced today, accused is acquitted of the charges punishable U/S 135 & 151 of Electricity Act 2003. Bail bond of the accused canceled and surety discharged. Amount, if any, deposited by the accused as a condition for bail be released by the complainant company after expiry of period of appeal.
However, in terms of Section 437 (A) Cr.PC., accused are directed to furnish a bail bond for the amount of Rs.40,000/- 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.
Necessary bail bond with surety, in compliance with the order, has been furnished by the accused along with latest passport size photograph and residential proof is accepted. File be consigned to record room.
Announced in open court (Arun Kumar Arya)
ASJ/Special Court (Elect.)
Tis Hazari/Delhi/13.03.2015
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