Delhi District Court
Bypl vs Aslam Cc No. 557/13 Page 1 on 7 November, 2019
IN THE COURT OF MS REKHA
ADDITIONAL SESSIONS JUDGE, (SPECIAL COURT)
CENTRAL, ELECTRICITY, TIS HAZARI COURT, DELHI
CC No. 557/13
New Case no.323180/16
BSES Yamuna Power Ltd.,
Having its Registered office at:
Shakti Kiran Building Karkardooma
Delhi - 110032.
Acting Through its Authorized Officer
Sh. Rajeev Ranjan .......... Complainant
Verses
Aslam
S/o late Razak
6888, Qila Kadam Sharif,
Ram Nagar SHD,
Delhi110055 ............Accused
Date of Institution : 07.06.2013
Date of Judgment : 07.11.2019
Final Order : Acquitted.
BYPL Vs Aslam CC No. 557/13 page 1
JUDGMENT
1). The complainant company i.e. BSES Yamuna Power Ltd. (in short BYPL) has filed the present compliant case under Section 135, 138 & Section 154(5) of the Electricity Act, 2003 (hereinafter referred as 'Act') against the accused praying that accused be summoned, tried and punished as per law and for determining the civil liability of the accused.
2). The brief facts in narrow compass, relevant and necessary for the disposal of the present case are that present complaint is filed by the complainant company acting through Sh. Rajeev Ranjan who is duly authorized to represent the complainant company vide Authority Letter dated 29.08.2006. As per case of complainant company, the BYPL Vs Aslam CC No. 557/13 page 2 premises No.6888, Qila Kadam Sharif, Ram Nagar, PHG, Delhi55 (hereinafter referred as subject property) was inspected by the MMG department on 07.09.2012 where the meter No. 14074533 (hereinafter referred as subject/removed meter) was found installed. A strong possibility of meter tampering appeared, hence abovesaid meter was removed by MMG staff and it was replaced with new meter No. 11353312. Further, removed meter was sent to meter testing lab for further test in Bag No.308013 and with seal No. 157169. As per the lab report No. BY12/28329, team found the burnt terminal block and also meter RTC and MD history disturbed and observed that ESD/HF coil was applied to the meter.
Further, as per the direction of DGM (Enforcement
1) and in reference of Lab report, an inspection/raid was carried out on 10.04.2013 at 2.10 hrs at the subject premises by the joint inspection team of the BYPL Vs Aslam CC No. 557/13 page 3 complainant company. The inspection team consisted of Er. Mukesh Ravivansh Sr. Manager (Enf1), HiteshDET, UmeshL.M. and Paurush Sharma. It is also stated that during the course of inspection, inspection team found that electricity supply was running through single phase electronic meter No. 11353312 R2566 kwh at the premises which was replaced by the MMG staff. The inspection team observed that as per lab report, the terminal block was burnt and meter RTC and MD history was disturbed and observed that ESD/HF coil was applied to the meter. The total connected load was found to the extent of 10.363 KW for NX purpose against the sanctioned load of 3.000 KW for NX purpose. Inspection team prepared inspection report, load report and seizure memo. Necessary videography of existing meter and connected load has been taken by M/s Arora Photo Studio in the presence of the accused. The accused refused to sign the BYPL Vs Aslam CC No. 557/13 page 4 report and also did not allow to paste the same on the wall.
It is also stated that thereafter, a show cause notice dated 10.04.2013 for suspected theft of electricity (meter tampering) was issued to the accused instructing him to reply by 17.04.2013 and also to attend the personal hearing on 24.04.2013 at 10.30 AM before the Assessing Officer. The accused attended the same, there he stated that he had no idea about any type of tampering in the meter and denied all the charges of the meter tampering. On the basis of the inspection report, lab report and evidence on record, speaking order was passed by SH. Randeep KumarAssessing Officer on 30.04.2013 establishing a case of Dishonest Abstraction of Energy (in short DAE) as per the DERC regulations. Accordingly, the assessment bill as per the DERC regulations and tariff order was raised by the complainant company for a sum of Rs. 220,680/ which was payable on due date on 15.05.2013 but accused failed to pay the same. In given fact and BYPL Vs Aslam CC No. 557/13 page 5 circumstances of the case, present complaint case has been filed.
3). The complainant company led the presummoning evidence. Vide order dt. 28.10.2013, the accused was summoned for the offence alleged against him.
4) Vide order dt. 23.11.2015, notice U/s 251 Cr.PC was served upon the accused for the offence punishable U/s 135/138 of Electricity Act, 2003, to which accused pleaded not guilty and claimed trial.
5). In this case, the complainant company has examined five witnesses, so as to prove its case, namely PW1 Mukesh Ravivanshi, PW2Sh. Hitesh Rajput, PW3Sh. Jitender Shankar, PW04Randeep Kumar and PW05Sh. Tushar Sharma.
BYPL Vs Aslam CC No. 557/13 page 6
6. PW01Sh. Mukesh Ravivanshi testified that on 10.04.2013 at about 02.10 pm, he along with Sh. Hitesh Rajput DET and Sh. Umesh LM and Sh. Vinay Photographer from M/s Arora Photo Studio visited premises bearing no.6888, Quila Kadam Sharif, Ram Nagar, Pahar Ganj Division Delhi. They had gone to the aforesaid premises as a reference was given to them by the office, as the meter earlier installed at the said premises was found tampered by the lab. The lab had found the meter terminal block was burnt and meter RTC had failed. The said lab report dated 10.10.2012 was handed over to them in respect of meter with Aslam as its registered consumer. On visiting the site, they found that Aslam himself was using the premises for nondomestic purpose and manufacturing of ladies purse being carried out through the electricity connection of the Aslam, which was BYPL Vs Aslam CC No. 557/13 page 7 being supplied electricity through a new meter of this connection. There was a connected load of 10.363 KW through the abovesaid connection. The details of the connected load was mentioned by them in the load report prepared at the site.
The said report was already Ex.CW2/C bearing his signatures at point A. They prepared inspection report at the site in which the details of the earlier meter as well as new meter was mentioned. The said inspection report was already Ex.CW2/B bearing his signatures at point A. They had also received a meter which was tested by the lab and found tampered in the present case and seizure memo to that effect was also prepared at the site and same was already Ex.CW2/D bearing his signatures at point already markX. He also issued a show cause notice to accused Aslam to attend BYPL Vs Aslam CC No. 557/13 page 8 personal hearing before the Assessing Officer. The carbon copy of said show cause notice was already Ex.CW2/F bearing his signatures at point mark A. The photographer Vinay carried out the videography at the site covering the connected load as well as new meter. The CD containing the said videography was already Ex.CW2/E. They tired to give the copy of reports to accused Aslam but he refused to sign and receive the same. He also did not allow them to paste the same at the site.
Witness also testified that accused Aslam was present in the court that day (witness correctly points out towards accused Aslam).
He also testified that he could identify the case property, if show to him.
At that stage, a sealed parcel with the seal of M. BYPL Vs Aslam CC No. 557/13 page 9 Ravivanshi was opened. The parcel contained a single phase electronic meter bearing no.14074533 with burnt terminal block at its bottom. The parcel also contained the carbon copy of seizure memo Ex.CW2/D. Both of them were collectively Ex.P1 and the same pertained to electricity connection of accused Aslam.
7. PW02Sh. Hitesh Rajput testified that on 10.04.2013 at about 02.10 pm, he along with Sh. Mukesh Ravivanshi, MangerEnf, Sh. Paurash Sharma, LM and Sh. Umesh LM and Sh. Vinay Photographer from M/s Arora Photo Studio visited premises bearing no.6888, Quila Kadam Sharif, Ram Nagar, Pahar Ganj Division Delhi. They had gone to the aforesaid premises as a reference was given to them by the office, as the meter earlier installed at the said premises was found tampered by the lab. The lab had found the meter BYPL Vs Aslam CC No. 557/13 page 10 terminal block was burnt and meter RTC had failed. The said lab report dated 10.10.2012 was handed over to them in respect of meter with Aslam as its registered consumer. On visiting the site, they found that Aslam himself was using the premises for nondomestic purpose and manufacturing of ladies purse being carried out through the electricity connection of the Aslam, which was being supplied electricity through a new meter of this connection. There was a connected load of 10.363 KW through the abovesaid connection. The details of the connected load was mentioned by them in the load report prepared at the site.
The said report was already Ex.CW2/C bearing his signatures at point B. They prepared inspection report at the site in which the details of the earlier meter as well as new meter was mentioned. The said inspection report was already BYPL Vs Aslam CC No. 557/13 page 11 Ex.CW2/B bearing his signatures at point B. They had also received a meter which was tested by the lab and found tampered in the present case and seizure memo to that effect was also prepared at the site and same was already Ex.CW2/D bearing his signatures at point already markB. Their team Manger also issued a show cause notice to accused Aslam to attend personal hearing before the Assessing Officer. The carbon copy of said show cause notice was already Ex.CW2/F bearing his signatures at point mark A. The photographer Vinay carried out the videography at the site covering the connected load as well as new meter. The CD containing the said videography was already Ex.CW2/E. They tired to give the copy of reports to accused Aslam but he refused to sign and receive the same. He also did not allow them to paste the same at the site.
He also testified that accused Aslam was present in the BYPL Vs Aslam CC No. 557/13 page 12 court that day (witness correctly pointed out towards accused Aslam).
He also testified that he could identify the case property, if show to him.
At this stage, open parcel, (opened during examination of PW1) was shown to the witness. The parcel contained a single phase electronic meter bearing no.14074533 with burnt terminal block at its bottom. The parcel also contains the carbon copy of seizure memo Ex.CW2/D. Both of them were collectively Ex.P1 and the same pertained to electricity connection of accused Aslam.
8. PW03 Sh. Jitender Shankar testified that he was authorized representative of the complainant company duly authorized by the General Power of Attorney executed on 29.08.2006 by the CEO of the company, photocopy of the BYPL Vs Aslam CC No. 557/13 page 13 same which was selfattested was Ex. PW3/1. Present complaint already EX. CW1/A had been filed by Sh. Rajeev Ranjan which bore his signature at point A. He identified the signature of Sh. Rajeev Ranjan as he had seen him signing and writing during the course of his employment with the complainant company. Photocopy of the GPA dated 29.08.2006 issued in favour of Sh. Rajeev Ranjan by the complainant company was already Ex. CW1/B. The complaint was true and correct.
9. PW04 Sh. Randeep Kumar testified that o n the basis inspection report and lab report and load analysis, he passed the Speaking Order on 30.04.2013 already Ex. CW2/G which bore his signature at point-A. Inspection team issued notice to the user/registered consumer for personal hearing on 24.04.2013 and he attended the same personally. In the personal hearing, he did not dispute about load. The user/registered consumer told that he BYPL Vs Aslam CC No. 557/13 page 14 was not aware about tampering in his meter and he knew that his meter was burnt. He analysed the lab report and consumption pattern and consumption pattern found 18.3% which was less than the prescribed limit of DERC. After meter replacement, the consumption was also increased in respect to the corresponding period of last year.
10. PW05 Sh. Tushar Sharma testified that on 10.10.2012, he was posted at Savita Vihar Lab and on that day, he received a bag bearing No. B-308013 with seal No. 157159. He opened the bag and a meter bearing No. 14074533 (make Kaifa) was taken out. Upon testing of this meter, the terminal block of the meter was found in burnt condition. It was also observed that meter and MD history data was found disturbed due to application ESD/HF coil. He also observed the downloaded data of the meter and found that the meter in question was disturbed by external sources. The meter test report alongwith downloaded data of meter were already Ex. CW2/A (colly) bore his signature at point- A. BYPL Vs Aslam CC No. 557/13 page 15 He also testified that he could identify the meter if shown to him.
At that stage, an plastic bag with broken seal was produced and same was opened and found containing carbon copy of seizure memo on the letterhead of BYPL and also found a meter in three pieces, orange colour piece showing the number 14074533, plastic cover showing the number Jeevan 1130P4130785 and circuit of the meter showing KF194110491941100101 2004/4/22. After seeing the carbon copy of the seizure memo, witness stated that it belonged to the Enforcement department. After seeing the meter in three pieces, the witness stated that it was the same meter which was tested by him. The said cable was already EX. P1 (colly).
11). Thereafter, statement U/s 313 Cr.P.C, of accused had been recorded, in which he has denied the allegations against him. He also stated that no inspection was carried out as alleged and he was not indulged in any type of theft of electricity as alleged. He also stated that PW01 & 2 wrongly identified him and he could not BYPL Vs Aslam CC No. 557/13 page 16 say that the meter produced in the Court was the same which was being used by him. He also stated that the complaint was false one and the witnesses were the interested witnesses of the complainant company and falsely implicated him in the present case being the officials of the complainant company. He also stated that he was innocent and he had not committed any alleged offence of electricity theft.
Accused chose not to lead DE.
12. 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 BYPL Vs Aslam CC No. 557/13 page 17 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.
It is to note here that as per the testimony of PW01 Sh. Mukesh Ravivanshi and PW02Sh. Hitesh Rajput, they prepared the Inspection report already Ex. CW2/B, load report already Ex. CW2/C, and Seizure Memo already Ex. CW2/D and they tried to give the copy of the reports to accusedAslam but he refused to sign and receive the same and he also did not allow them to paste the same at the site.
It is to note here that PW02Sh. Hitesh Rajput during his crossexamination stated that their office had sent the copies of the report by post to the consumer and he had not personally sent.
It is to note here that no document has been proved on record that the accused had been served with the alleged inspection report by the registered post. Here, view of the Court is that mere say is not sufficient that the alleged inspection report BYPL Vs Aslam CC No. 557/13 page 18 was sent to the consumer through post.
Thus, complainant company has failed to prove that above said alleged reports were ever served upon the accused. Therefore, the inspection team has not complied with the above said mandatory regulation which certainly goes against the complainant company.
As per the testimony of PW01Sh. Mukesh Ravivanshi, besides him, Sh. Hitesh RajputDET and Umesh were the part of raiding team but as per the testimony of PWSh. Hitesh Rajput, besides him, Umesh, Mukesh Ravivanshi and Sh. Paurash Sharma were part of the raiding team.
Here, view of the Court is that there is material contradiction in the statement of PW01 and PW02 regarding alleged members of alleged raiding team which certainly goes against the case of the complainant company.
It is to note here that a s per the complaint, during the inspection, the MMG staff found installed the meter No. 14074533 BYPL Vs Aslam CC No. 557/13 page 19 at the premises and there was a strong possibility of meter tampering. Hence, MMG staff removed the subject meter. Further, the subject/removed meter was sent to meter testing lab for further test in bag No. 308013 and with seal No. 157169. As per Lab Report No. BY12/28329, the team found the burnt terminal block and also meter RTC and MD history disturbed and observed that ESD/HF coil was applied to the meter.
It is very very relevant to pen down here that no alleged person from MMG department who allegedly removed the meter has been examined on behalf of the complainant company. Had they examined, the accused would have got an opportunity to crossexamine them. Nothing proved from the testimony of complainant witnesses that the accused was ever intimated to witness the alleged testing.
Furthermore, perusal of alleged lab report Ex. CW2/A (colly), it is found that in the Consumer's name & signature column, "not present" has been written.
BYPL Vs Aslam CC No. 557/13 page 20
In light of above, view of the Court is that the alleged subject/ removed meter was allegedly tested in the absence of the accused which certainly goes against the case of the complainant company.
In the judgment titled as Col. R.K.Nayyar vs. BSES Rajdhani Power Ltd. 140 (2007) DLT 257, wherein it has been observed as under : "This court is of the view that an inference of fraudulent abstraction of energy must be based on the some conclusive evidence that the user has tampered with the meter in a manner that has enabled such user to either slow down the meter or make it record lesser units of consumption. There must be a link established between the physical evidence of tampering noticed on inspection and the consumer. An inference of FAE should not be permitted to be drawn on the mere fact that meter had been found with broken seal. An electricity meter is admittedly not kept enclosed in a tamper proof environment under the lock and key, with one key retained by the consumer and the other by the supplier of the electricity. If a meter is kept in a location that permits any person intending to do mischief to have easy assess to the meter, than to fasten the charge of FAE on the consumer in the event of meter being found tampered, is not being reasonable or even realistic. Something more would have to be demonstrated to infer an intention by the consumer to "fraudulently" abstract electricity. In this context it is necessary to emphasis that the analysis of consumption pattern cannot constitute substantive proof of DAE in the absence of tangible physical evidence of DAE in the manner explained above. In other words, the analysis of consumption pattern can only corroborate what is found on physical inspection which can indicate whether the consumer has herself BYPL Vs Aslam CC No. 557/13 page 21 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.
It is to note here that as per the testimony of PW5Sh. Tushar Sharma, upon testing of subject meter, the terminal block of the meter was found in burnt condition and it was also observed that meter and MD history data was found disturbed due to application ESD/HF coil. He also observed the downloaded data of the meter and found that the meter in question was disturbed by external sources. The meter test report alongwith downloaded data of meter were already Ex. CW2/A (colly) bore his signature.
It is relevant to pen down here that during cross examination, PW05Sh. Tushar Sharma stated that definition of ES/HF coil is " Electro Static device/high frequency and same was used to stop the functioning of meter and same was operated by some external device i.e. remote system. He admitted that at the time of testing of meter, he had not received any external device BYPL Vs Aslam CC No. 557/13 page 22 from the BYPL Enforcement office/department. He also admitted that they had not found any foreign material/illegal components in the meter.
Furthermore, as per the crossexamination of PW04 Sh. Randeep Kumar, no instrument/remote to applying ESD/HF coil in the meter was seized by the inspection team.
In light of above, it is said that neither external artificial means was found during alleged inspection nor during alleged testing of the meter in the lab. Hence, the complainant company has failed to show that accused person has used any external ESD/HF coil so as to disturb the subject/removed meter as alleged.
Thus, the complainant company failed to show any tangible evidence of dishonest abstraction of energy (DAE) against the accused person. Hence, complainant company failed to prove that meter was got disturbed by accused as alleged which certainly goes BYPL Vs Aslam CC No. 557/13 page 23 against the case of the complainant company.
It is also relevant to pen down here that as per the testimony of PW1Sh. Mukesh Ravivanshi and PW02Sh. Hitesh Rajput, Sh. Vinayphotographer from M/s Arora Photo Studio accompanied with the inspection and he did the videography at the site. The CD containing the said videography was already Ex. CW2/E. It is very very relevant to pen down here that the alleged photographerVinay from M/s Arora Photo Studio who allegedly took the videography has not been examined by the complainant company in this case.
Moreover, the complainant company has also not relied upon the requisite certificate U/s 65B of the Indian Evidence Act, so as to prove the alleged videography Ex.CW2/E. Thus, the complainant company has failed to prove the videography in the present case in accordance with law. Therefore, the alleged videography Ex.CW2/E is of no help for the case of the BYPL Vs Aslam CC No. 557/13 page 24 complainant company.
In this case, the inspection team has not joined the independent public persons during inspection.
It is very very relevant to pen down here that no PWs testified regarding joining of public person during alleged inspection proceedings. 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. Therefore, nonjoining of the public persons during inspection also goes against the complainant company.
So far as PW03Sh. Jitender Shankar and PW04Sh. Randeep Kumar are concerned, they are formal witnesses. PW03 Sh. Jitender Shankar testified only regarding filing of present case and PW04Sh. Randeep Kumar only testified regarding passing the speaking order on the basis of alleged inspection report, lab report and load analysis.
In view of abovediscussion, the complainant company BYPL Vs Aslam CC No. 557/13 page 25 has failed to prove the offence alleged against the accusedAslam beyond reasonable doubt in the present case. Thus, the accused namely Aslam is entitled for acquittal. Accordingly, accused namely Aslam is acquitted for the offence punishable Under Section 135/138 of the Electricity Act, 2003. Bail bond of the accused stands canceled and his surety is also discharged. Amount, if any, deposited by the accused as a condition for bail or in pursuance to interim order of the court qua the theft assessment bill raised by the company on the basis of inspection dated 07.09.2012 be released by the complainant company after expiry of the period of appeal. It is to note here that bail bond U/s 437 (A) Cr.P.C. of accused has been furnished and accepted. File be consigned to record room after due compliance. Digitally signed by REKHA
REKHA Date:
2019.11.07
15:43:42
+0530
Announced in open Court (Rekha )
on day of 7 November,2019. ASJ(Special Court)Electricity, th Central/Tis Hazari Courts, Delhi BYPL Vs Aslam CC No. 557/13 page 26