Delhi District Court
Brpl vs . Radhye Lal Page 1 Of 13 on 31 May, 2017
IN THE COURT OF SHRI LAL SINGH
ADDITIONAL SESSIONS JUDGE, ELECTRICITY (SPECIAL
COURT), TIS HAZARI COURT, DELHI
CC No. 76/11
New Case no.325779/16
BSES Rajdhani Power Ltd.,
Having its Registered office at:
BSES Bhawan, Nehru Place,
New Delhi - 110019.
Also at :-
Corporate, Legal and Enforcement Cell,
Near Andrews Ganj Market, Andrews Ganj,
New Delhi-110049.
Through: Sh. Binay Kumar
(Authorized Representative) ...........Complainant
Verses
Sh. Radhey Lal (User & R/C)
At: Plot No.1 Shop No. 1, DHS Block D,
MPH-2-Opp D-57, Mayapuri,
(near Punjab & Sind Bank),
New Delhi-110064. ...........Accused
Date of Institution : 25.02.2011
Reserved for Judgment : 30.05.2017
Date of Judgment : 31.05.2017
JUDGMENT
1). The brief facts of the case are that on 06.03.2009, at about 12.45 PM, an inspection was carried out at the premises bearing Plot No.1, Shop No.1, DHS Block D, MPH-2- Opp D-57, Mayapuri (near Punjab & Sind Bank), New Delhi- 110064, by the joint inspection team of the complainant company. The inspection team was comprised of Sh. Ajay Yadav (AM), Sh. Dhiraj Kumar (GET), Sh. Davinder Singh (DET) and Sh. Sajjan (LM). At the time of inspection, accused was user as well as registered consumer of electricity supply in the inspected premises CC No.76/11 BRPL Vs. Radhye Lal page 1 of 13 New case No.325779/16 in respect of K.No. 26100B060104. Further, during the inspection, accused found using electricity for industrial purpose and the total connected load was assessed as 65.715 KW/IX/DAE against the sanctioned load of 8.46 KW/NX. It is also alleged that during the inspection one three phase electronic meter bearing no. 27034043 was found installed at the site and meter box seals, meter half seals, ultrasonic welding and hologram seals of the said meter were found tampered and re-fixed. Further, on checking the accuracy of the meter in question through accu-check instrument, the meter was found slow by 62.07%. It is also alleged that meter was not recording consumption of Y and B phases. The data of meter was stated to be downloaded through CMRI for further analysis. The meter was segregated at the site in the presence of consumer and potential wires of Y and B phases were found cut (intentionally by the accused), and found disconnected in meter PCB for suppressing recording of consumption by the meter. The IR no. 208814, dated 06.03.2009, was pasted on the tampered meter to maintain the status qua. Further, the videography showing irregularities at the site was also conducted by videographer from M/s Arora Photo Studio. Inspection team prepared the inspection report, meter details report and connected load report and also seized the meter in question vide seizure memo and show cause notice dated 06.03.2009 also issued to the accused to file reply by 13.03.2009 and to attend the personal hearing on 19.03.2009. Accused stated to have filed the reply on 12.03.2009 and disputed the connected load and denied the allegations against him. Accused also attended the personal hearing on 19.03.2009. Thereafter, on the basis of available material, the Assessing Officer of the complainant company has passed the speaking order dated 02.06.2010, thereby confirming the allegation of DAE against the accused. In the instant matter the complainant company has also raised the theft assessment bill for DAE in the sum of Rs. 13,42,010/- against the accused. Thus, the complainant company has filed the present complaint case against the accused for the CC No.76/11 BRPL Vs. Radhye Lal page 2 of 13 New case No.325779/16 offence punishable u/s 135/138 of the Electricity Act, 2003 and for determination of civil liability u/s Section 154(5) of Electricity Act, 2003.
2). Thereafter, the complainant company led the pre summoning evidence. Vide order dt. 02.05.2011, accused was summoned for the offence alleged against him.
After that, vide order dt. 20.01.2012, notice u/s 251 Cr.PC, was put to the accused for the offence punishable u/s 135/138 of Electricity Act, 2003, to which accused pleaded not guilty and claimed trial. Though, in the notice u/s 251 Cr.PC, as put to the accused for the offence u/s 135/138 of the Electricity Act, 2003, the date is mentioned as 20.01.2011 and it appears that due to typographical mistake instead of 20.01.2012, the same has been mentioned as 20.01.2011. Perusal of the record and orders shows that notice u/s 251 Cr.PC was put to the accused on 20.01.2012 and hence, apparently, notice was framed on 20.01.2012.
3). In this case, the complainant company has examined three witness, so as to prove its case, namely PW1 Sh. Ajay Yadav (Manager-Enf), PW2 Sh. Ritu Raj Sinha (Assessing Officer) and PW3 Sh. Pankaj Bhatty, AR of the complainant company.
4). Thereafter, statement of accused u/s 313 Cr.PC had been recorded, in which accused has denied the allegations against him. Accused submitted that during the inspection, he was not present at the site and he reached later on at the site. Accused also submitted that in his presence meter in question was not segregated and same was segregated before his reaching at the site of the premises. Accused further submitted that neither the reports were prepared nor the videography was conducted in his presence. In his statement u/s 313 Cr.PC, accused submitted that the meter in question was actually checked by the officials of the CC No.76/11 BRPL Vs. Radhye Lal page 3 of 13 New case No.325779/16 company on 02.01.2009 and also issued meter change report no. 288202 and he has been falsely implicated in the present case.
5) Accused has not led the defence evidence so as to substantiate his contentions.
6). I have heard the arguments of Ld. Counsels for the parties.
7). Sh. Jasbir Singh, Ld. Counsel for the complainant company submitted that accused found indulging in meter tampering at the time of inspection. He submitted that meter in question was segregated at the site in the presence of accused and same was checked through accu-check instrument and consumption of the meter was found slow by 62.07%. Counsel for the complainant company argued that the seals as well as ultrasonic welding of the meter was also found tampered. Further, meter display was also found faulty. Counsel for the complainant company submitted that potential wires of meter were found cut during inspection. He also submitted that the premises in question as well as inspection is not in dispute. Ld. Counsel for complainant company submitted that the complainant company has proved the offence alleged against the accused.
8). Sh. S.Satyanarain, Ld. counsel for the accused submitted that no artificial means were found in the meter at the time of inspection, when the meter was segregated at the site and this fact was admitted in cross-examination by PW1 also. He submitted that PW1 admitted that inspection team did not take calibration certificate of accu-check with them during the inspection. He argued that no record of CMRI data has been placed on record and also meter in question was not tested in the lab. Counsel for the accused argued that only one witness from inspection was examined and moreover, the videographer was also not examined CC No.76/11 BRPL Vs. Radhye Lal page 4 of 13 New case No.325779/16 and further, electronic evidence not proved in accordance with law. Counsel for the accused submitted that company has also failed to prove the offence alleged against the accused.
9). I have considered the submissions of Ld. Counsels for the parties and also perused the evidence on record.
10). In the instant matter the complainant company has examined three witnesses. PW3 Sh. Pankaj Bhatty, AR of the complainant company, is a formal witness, who stated to the extent that the present complaint case Ex.CW1/1 has been filed by Sh. Binay Kumar, earlier AR of the company.
Admittedly, PW3 was not the member of the inspection team and also he has not filed the present complaint case and he has only identified the signature of earlier AR on the complainant company on complaint Ex.CW1/1. Thus, PW3 is a formal witness in the present case and he has no much help for the complainant company in proving the allegation against the accused.
11). PW1 Sh. Ajay Yadav (Manager- Enf.) was member of the inspection team, which inspected the premises on 06.03.2009. PW1 deposed that at the time of inspection, three phase meter bearing no. 27034043 was found installed at the site of the premises and the same was in the name of registered consumer Sh. Radhey Lal. As per PW1, meter box seals along with meter half seals, terminal seal and ultrasonic welding of the meter were found tampered and re-fixed. PW1 stated that meter was checked through standard accu-check instrument and found slow by 62.5%. As per PW1, meter was segregated at the site in the presence of consumer and found that potential wires of Y phase and B phase were cut intentionally to manipulate the recorded consumption and same was shown to the consumer at the site. PW1 also stated that connected load was found as 65.715 KW for CC No.76/11 BRPL Vs. Radhye Lal page 5 of 13 New case No.325779/16 industrial purpose and they seized the meter in question as material evidence vide seizure memo Ex.CW2/3. PW1 further stated that inspection report including meter detail report Ex.CW2/1 (colly) and load report Ex.CW2/2 were also prepared by the inspection team. Thereafter, PW1 prepared the show cause notice dated 06.03.2009 and served the same upon the consumer at the site. During trial, PW1 has also identified the meter in question vide Ex.P1.
In this matter, there were four members in the inspection team and out of those four members, the complainant company has examined only one member of the inspection team namely PW1 Ajay Yadav. Perusal of inspection report Ex.CW2/1 (colly) and connected load report Ex.CW2/2, shows that same were signed by three members of the inspection team and one member has not signed the reports. Moreover, the reports and other documents as prepared by the inspection team were not pasted at the site of the premises.
The provision of regulation 52 (ix) Delhi Electricity Supply Code and Performance Standards Regulation, 2007, is reproduced as under:-
"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 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".
It is apparently clear that the inspection team has not pasted the reports and documents as stated to be prepared at the site, at the premises in question during inspection. PW1, who was the member of inspection team has also not shown any reason for non-pasting of the reports. He has also failed to explain as to why the reports and other documents were not pasted at the site of the CC No.76/11 BRPL Vs. Radhye Lal page 6 of 13 New case No.325779/16 premises. Moreover, in the inspection report Ex.CW2/1 also there is no mention/reference of pasting of the reports at the site and efforts, if any, made by the team in pasting the reports. Otherwise also, there is no mention in the inspection report, if there was any resistance in pasting the reports on the part of accused/ consumer. Therefore, it can be logically concluded that there was no resistance in pasting the reports at the site. The reports as well as other documents prepared at the site during inspection were required to be pasted at the site. Further, one of the member of the inspection team has also not signed the reports and PW1 failed to explain what prevented one of the member (Sh. Sajjan Singh, LM) from signing the reports. Thus, the inspection team has not complied with above said mandatory regulation during inspection which certainly goes against the complainant company.
12). In the instant matter, during the inspection, meter in question was segregated at the site by the inspection team. Whether the inspection team was technically competent and also authorized to segregate the meter at the site, qua that there is no material or documents placed on record by the complainant company. PW1 stated that meter in question was segregated in the presence of consumer. However, accused in his statement u/s 313 Cr.PC,submitted that the meter in question was already segregated by the team, before his reaching at the site, as he was not present at the time of inspection. PW1 in his cross-examination, also admitted that they did not find any artificial means in and around the meter during the segregation, such as wires, film or other material through which the meter can be tampered.
Moreover, so as to substantiate allegation against the accused qua tampering in the meter, at least public persons should have been joined or associated at the time of segregation of the meter. However, in the instant matter, public persons were neither joined in the inspection nor associated to witness the segregation of the meter, at the time of segregation of CC No.76/11 BRPL Vs. Radhye Lal page 7 of 13 New case No.325779/16 the meter. PW1 has also not given any plausible reasons as to why the public persons were not joined in the inspection. In the inspection report Ex.CW2/1 (colly) also there is no mentioning of any efforts made by the inspection team to join the public persons. There is also nothing on record to suggest that the public persons were not available in the vicinity of the premises as neither in the inspection report Ex.CW2/1 nor in the testimony of PW1, there is any reference qua that. Therefore, it can be easily construed that the inspection team had not made any effort to join the public persons to witness the segregation of the meter and in the peculiar facts of the present case, same proves fatal to the case of the complainant company.
13). The reply of the consumer/ accused stated to be filed in response to the show cause notice dated 06.03.2009, has also not been placed on record. Though, the contents of the reply stated to be filed by the consumer, is mentioned in the speaking order Ex.PW2/B, however, the said reply is not on record. PW2 stated that inspection team issued show cause notice Ex.CW2/5 to the accused for personal hearing on 19.03.2009 and accused attended the personal hearing on 19.03.2009. In cross- examination, PW2 also stated that he had gone through the contents of the reply as filed by the accused but accused has not completely disputed the load report. In the absence of the reply as stated to be filed by the accused, on record, no much weight can be given to the testimony of PW2 qua the contents of the alleged reply as stated to have been filed by accused. The complainant company should have placed the copy of reply on record and there is also no explanation from the company as to why the reply has not been filed on record by the company. Thus, non-filing on record, the reply of the accused stated to be filed, in response to show cause notice, has also negative impact upon the case of the company.
CC No.76/11BRPL Vs. Radhye Lal page 8 of 13
New case No.325779/16
14). It is the allegation against the accused that
during inspection three phase meter bearing no. 27034043 was found tampered as the meter box seals, terminal seals and ultrasonic welding of the meter were found tampered and re-fixed. It is also alleged that on segregation of the meter at site, the potential wires of Y phase and B phase were cut intentionally to manipulate the recorded consumption. The meter in question was seized vide Ex.CW2/3, however, the same was not sent to NABL accredited lab for testing. PW1 also admitted that meter in question was not sent in the lab.
The 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.
Apparently, the meter in question was not tested in any of the lab including NABL accredited lab. Complainant witnesses have failed to explain or show any reason as to why the meter was not sent in the lab for testing. The meter in question was CC No.76/11 BRPL Vs. Radhye Lal page 9 of 13 New case No.325779/16 required to be sent in the lab to ascertain the alleged tampering in the meter. The meter in question was required to be tested in the lab also, so as to prove the allegation of tampering in the meter (DAE) by the accused. Thus, the complainant company has clearly violated the above regulation by not sending the meter in question in the NABL accredited lab for testing and same goes against the company.
15). PW2 Sh. Ritu Raj Sinha, had passed the speaking order Ex.PW2/B and he stated that the inspection team checked the meter no. 27034043 and found that the seals of the meter were in tampered condition and meter was running slow by almost 60% and on the basis of the inspection report and consumption pattern as well as relevant material, he passed the speaking order dated 02.06.2010 vide Ex.PW2/B. 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 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 seals. 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 CC No.76/11 BRPL Vs. Radhye Lal page 10 of 13 New case No.325779/16 easy assess to the meter, than to fasten the charge of FAE on the consumer in the event of the 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 emphasise 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 open to the respondent, in the absence of any tangible evidence of DAE, to proceed on the basis of consumption pattern to infer DAE.
Otherwise also, PW2 Sh. Ritu Raj Sinha, admitted that he had not checked the meter in question personally. PW2 further stated that the consumption pattern was generated as per billing period and assessed consumption. PW2 further admitted that separate note-sheet of consumption pattern has not been annexed along with the speaking order.PW2 also admitted that copy of downloaded CMRI data has not been annexed with the speaking order. Moreover, PW1 (Sh. Ajay Yadav), who was the member of the inspection team admitted that they did not find any artificial means in and around the meter at the site such as wires, films or any other material through which meter can be tampered. Thus, the complainant company has failed to show any tangible evidence of dishonest abstraction of energy (DAE) against the accused.
16). In the instant matter during inspection videography was stated to be conducted by Sh. Sanju (videographer), showing irregularities and covering the inspection and prepared the CD of the same vide Ex.CW2/4. PW1 stated that Sh. Sanju (videographer) had conducted the videography covering CC No.76/11 BRPL Vs. Radhye Lal page 11 of 13 New case No.325779/16 the inspection and connected load and CD of the said videography is Ex.CW2/4. However, the videographer Sh. Sanju has not been examined by the company, so as to prove the videography. The complainant company should have examined the videographer to prove the videography and failure to examined him certainly goes against the complainant company.
Moreover, the complainant company, has failed to file the requisite certificate u/s 65B of the Indian Evidence Act, so as to prove the CD containing videography vide ExCW2/4. The complainant company ought to have filed the certificate u/s 65B of the Indian Evidence Act, so at to prove the CD Ex.CW2/4. Therefore, complainant company has failed to prove the CD Ex.CW2/4 in the absence of mandatory certificate u/s 65B. Thus, the complainant company has failed to prove the electronic evidence in this case in accordance with law and hence, the CD Ex.CW2/4 is of no much help to the case of the complainant company.
17). 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. Thus, the accused is entitled for acquittal. Accordingly, the accused is acquitted for the offence punishable U/s 135/138 of the Electricity Act, 2003. Bail bond of the accused stands canceled and sureties discharged.
18.) Accused to furnish bail bond for the amount of Rs.25,000/- 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.
19). File be consigned to record room.
Announced in open court ( Lal Singh )
on 31st day of May, 2017 ASJ/(Special Court) Electricity
Tis Hazari Courts, Delhi
CC No.76/11
BRPL Vs. Radhye Lal page 12 of 13
New case No.325779/16
CC No.76/11
BSES RPL Vs. Radhey Lal
New Case No. 325779/16
31.05.2017
Present : Sh. Pankaj Bhatty, AR of the complainant company.
Ms. Surina Anand proxy counsel for accused with accused.
Vide separate judgment, the accused is acquitted for the offence punishable U/s 135/138 of Electricity Act, 2003. Bail bond of the accused is canceled and surety is also discharged.
However, in terms of Section 437 (A) Cr.PC., accused is directed to furnish bail bond for the amount of Rs.25,000/- 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 (Electricity)
Tis Hazari/Delhi/31.05.2017
CC No.76/11
BRPL Vs. Radhye Lal page 13 of 13
New case No.325779/16