Delhi District Court
Bypl vs . Poonam & Anr. ("Acquitted") Page 1 Of 16 on 19 October, 2020
CC No. 324213/16 (Old CC No.608/2013) D.O.D. : 19.10.2020
CNR No.DLCT01-001428-2013
IN THE COURT OF SH. VIDYA PRAKASH, ASJ (ELECTRICITY), CENTRAL
DISTRICT, TIS HAZARI COURTS, DELHI.
Cri. Complaint No. 324213/16
In the matter of :
BSES YAMUNA POWER LTD.
A COMPANY DULY INCORPORATED UNDER THE COMPANIES ACT, 1956
HAVING ITS REGISTERED OFFICE AT :
SHAKTI KIRAN BUILDING, KARKARDOOMA,
DELHI 110032.
Also at:
CORPORATE, LEGAL AND ENFORCEMENT CELL,
NARWANA ROAD, NEAR SARSWATI KUNJ,
PATPAR GANJ, DELHI - 92.
ACTING THROUGH ITS
AUTHORISED REPRESENTATIVE
......COMPLAINANT
VERSUS
1.Ms. Poonam (R/C) (Case dismissed as withdrawn on 28.11.2019)
2. Mohd. Azaruddin (User) Both R/o :-
T-510, T/F, Chamelian Road, Bara Hindu Rao, Delhi - 06. .......ACCUSED Date of Institution : 09.07.2013 Date of Arguments : 05.10.2020 Date of Judgment : 19.10.2020 COMPLAINT UNDER SECTION 135, 138 and 150 READ WITH SECTION 151 OF THE ELECTRICITY ACT, 2003 INTERALIA FOR DETERMINATION OF CIVIL LIABILIES UNDER SECTION 154 (5) OF THE ELECTRICITY ACT, 2003.
Brief facts :
1. BSES Yamuna Power Limited (hereinafter called the complainant company has invoked the jurisdiction of this Court by filing the present complainant case in terms of Section 151 of the Electricity Act, 2003 BYPL Vs. Poonam & Anr. ("Acquitted") Page 1 of 16 Digitally signed by VIDYA VIDYA PRAKASH PRAKASH Date:
2020.10.19 14:16:45 +0530 CC No. 324213/16 (Old CC No.608/2013) D.O.D. : 19.10.2020 CNR No.DLCT01-001428-2013 (hereinafter referred to as Act) for prosecuting the accused persons for the offences under Section 135/138 of the Act, with further prayer to determine civil liability against the accused persons in terms of Section 154 (5) of the Act.
2. In brief, it is the case of complainant company that it is engaged in the business of distribution of electricity in the area by virtue of license granted to them by Delhi Electricity Regulatory Commission as per Section 20 of Delhi Electricity Reforms Act, 2000. It had filed the present case through its AR / officer namely Sh. Mukesh Sharma who is empowered by virtue of GPA dt. 05.07.2013 executed by CEO of the complainant company in his favour.
3. it is alleged that on 19.10.2012, MMG Department of complainant company removed single phase meter No. 25114324 in Bag No.316438 having Bag seal No.89465 from premises No.T-510 T/F, Chamelian Road, Bara Hindu Rao, Delhi (hereinafter called the subject premises) belonging to accused persons and sent the said meter for testing in their Meter Testing Lab, Savita Vihar. The electricity was restored through new meter on the same day. The accused persons / users / representatives were also advised to remain present in the testing laboratory vide letter dt. 19.10.2012 but none turned up on their behalf. After carrying out testing at the laboratory, report dt. 04.12.2012 was provided to the complainant company, whereby it was opined that plastic and hologram seals were found burnt, LCD and LED were found not Ok and Meter body was found burnt. It was concluded that the said meter was found externally burnt. On receipt of lab report, officials of complainant company consisting of Sh. Nagendra Sharma (Sr. Manager), Sh. Sanjay (DET), Sh. Mohit Jain (L/M) and Sh. Anish (photographer) again carried out inspection at the subject premises on 11.02.2013. At that time, the accused persons were allegedly found using BSES supply through Meter No.11362861 with reading of 376 BYPL Vs. Poonam & Anr. ("Acquitted") Page 2 of 16 Digitally signed by VIDYA VIDYA PRAKASH PRAKASH Date: 2020.10.19 14:17:03 +0530 CC No. 324213/16 (Old CC No.608/2013) D.O.D. : 19.10.2020 CNR No.DLCT01-001428-2013 KWH for commercial purpose at first floor thereof. Meter No.14163236 with reading of 14690 was also found installed on the same premises for remaining floors. Necessary videography of the inspected premises, was carried out alongwith connected load assessed by them.
4. It is further the case of the complainant company that accused No.1 is the registered consumer and accused No.2 was the user of electricity in the subject premises where inspection was carried out by members of the raiding party. It is claimed that the Inspection Report alongwith meter details and load report dt. 11.02.2013 were prepared at the site and the connected load was found to be 6.790KW for non domestic purpose. The tampered meter No.25114324 which was received after testing from the lab, was also seized vide seizure memo dt. 11.02.2013. It is further alleged that on the basis of assessment of connected load and lab report, shows cause notice was prepared but it was not allowed to be pasted at the site. It is alleged that the accused persons were using the electricity illegally and dishonestly through illegal means and they had indulged into dishonest abstraction of electricity through tempered meter and thus, they have committed the offences punishable under Section 135/138 of the Act. It is further alleged that despite show cause notices dated 28.02.2013 and 08.04.2013, the accused persons did not turn up before the Assessing Authority and consequently, Speaking Order dated 13.05.2013 was passed by Sh. Randeep Kumar, Assessing Officer as per DERC guidelines and Assessment Bill dt. 28.05.2013 for a sum of Rs.1,83,388/- was issued against the accused persons on the basis of said Speaking Order, which they failed to pay. Hence, the present complaint case has been filed.
5. After pre-summoning evidence was led by the complainant company, both the accused persons were ordered to be summoned for offences under Section 135/138 r/w Section 150 of the Act, vide order BYPL Vs. Poonam & Anr. ("Acquitted") Page 3 of 16 Digitally signed by VIDYA VIDYA PRAKASH PRAKASH Date: 2020.10.19 14:17:14 +0530 CC No. 324213/16 (Old CC No.608/2013) D.O.D. : 19.10.2020 CNR No.DLCT01-001428-2013 dated 03.12.2014 passed by ld. Predecessor of this Court.
6. At this juncture, it may be noted that accused No.1 could not be served with the summons as it was reported that said accused had already left the premises at the given address. Record shows that despite grant of repeated opportunities, complainant company failed to furnish particulars / fresh address of accused No.1 and ultimately, complainant company withdrew the present complaint case through its AR on 28.11.2019. That is how, the accused No.2 namely Mohd.
Azaruddin alone is facing trial in the present case.
7. It may also be noted here that an application for substitution of AR of the complainant company was moved during pendency of the complaint case. Same was allowed vide order dated 06.12.2018 passed by ld. Predecessor of this Court and Sh. Jitender Shankar was substituted as AR of the complainant company in this case.
8. After hearing the submissions made on behalf of both sides. Notice for offences punishable under Section 135/138 of the Act was served upon accused No.2 on 03.02.2020. Thereafter, the complainant company examined four witnesses i.e. PW-1 Sh. Jitender Shankar, DGM (Legal), PW-2 Sh. Sanjay Kumar Arya (Sr. Supervisor, BYPL), PW-3 Ms. Shweta Bist (Sr. Manager, BYPL) and Sh. Randeep Kumar (General Managar, BYPL) during post summoning evidence in order to establish the offences charged against the accused No.2. All the said four witnesses were cross-examined on behalf of said accused. Their detailed testimonies shall be discussed in the subsequent paras of this judgment.
9. Record shows that PE was closed on 13.02.2020, whereafter statement under Section 313 Cr.PC of accused Mohd. Mohd. Azaruddin was recorded by ld. Predecessor of this Court on 19.02.2020, whereby BYPL Vs. Poonam & Anr. ("Acquitted") Page 4 of 16 Digitally signed VIDYA by VIDYA PRAKASH PRAKASH Date: 2020.10.19 14:17:30 +0530 CC No. 324213/16 (Old CC No.608/2013) D.O.D. : 19.10.2020 CNR No.DLCT01-001428-2013 all the incriminating evidence which came on record against said accused, were put to him. He denied the same. He categorically denied that any inspection was carried at the subject premises on 11.02.2013 or that he was found indulging in dishonestly abstraction of energy. However, he admitted that single phase meter No.25114324 was changed by the complainant company on 19.10.2012. His defence is of general denial. He claimed his innocence and stated that he is falsely implicated by the complainant company. However, he opted not to lead any evidence in his defence.
10. I have already heard Sh. Anil Sharma, Advocate on behalf of complainant company and Sh. Praveen Yadav, Advocate on behalf of accused no.2. I have gone through the record as well as the authorities cited at the Bar.
11. Before dealing with the submissions made on behalf of both the sides, it would be necessary to discuss, in brief, the testimonies of the complainant's witnesses examined during trial. As already noted above, four witnesses in all were examined by complainant in support of their case during trial.
12. PW-1 Jitender Shankar is the AR of the complainant company, who has proved an attested copy of GPA dated 29.08.2006 executed by CEO of complainant company in his favour as CW-1/B and the present complaint case filed through Sh. Mukesh Sharma (previous AR) as Ex.CW1/A. Photocopy of GPA dated 05.07.2013 purportedly executed in favour of Sh. Mukesh Sharma is marked as Mark A. During his cross- examination, he admitted that he did not have personal knowledge of facts of the present case and also that he was not member of Raiding Party. However, he denied the suggestion that complaint case was not filed by Authorized person or that the documents filed alongwith complaint case, are false or baseless.
BYPL Vs. Poonam & Anr. ("Acquitted") Page 5 of 16 Digitally signed by VIDYA VIDYA PRAKASH
PRAKASH Date: 2020.10.19
14:17:43 +0530
CC No. 324213/16 (Old CC No.608/2013) D.O.D. : 19.10.2020
CNR No.DLCT01-001428-2013
13. PW-2 Sh. Sanjay Kumar is one of the members of Joint Inspection Team which, as per case of complainant company, had carried out inspection at the subject premises on 11.02.2013 on the basis of lab report. He deposed at the time of inspection, they found that new meter No.11362861 was installed in place of burnt meter. He testified that joint inspection team consisted of himself, Sh. Nagendra Sharma (Sr. Manager), Sh. Sanjay (DET), Sh. Mohit Jain (L/M) and Sh. Anish (photographer). The first floor of the subject premises was being used for commercial purpose. All the reports were prepared at the site but user Mohd. Azaruddin (as stated) refused to sign on them. Old burnt meter was seized at the site. The members of Inspection Team had showed their identity cards to the users at the time of inspection.
14. During cross-examination, he stated that burnt meter was brought in sealed polythene bag to their office. They opened the sealed polythene bag at site and showed burnt meter to Mohd. Azaruddin but he did not remember as to whether said burnt meter was sealed with any seal or not. He denied the suggestion that no reports were prepared at the site or that he never visited the site for inspection and no ID card was shown to anyone.
15. PW-3 Ms. Shweta deposed that on 04.12.2012, Meter No.25114324 was tested under her supervision. They did not find any reading in the meter and data could not be downloaded and meter was in burnt condition. They declared that the said meter was externally burnt and sent the same to Enforcement Department. During cross- examination, she denied the relevant suggestions, that aforesaid meter was not tested under her supervision or that there was reading in the meter or that they did not try to retrieve the downloaded data of the said meter or that the meter was in Ok condition or that it was not externally burnt. She stated that lab in which meter was tested, is NABL BYPL Vs. Poonam & Anr. ("Acquitted") Page 6 of 16 Digitally signed by VIDYA VIDYA PRAKASH PRAKASH Date: 2020.10.19 14:17:54 +0530 CC No. 324213/16 (Old CC No.608/2013) D.O.D. : 19.10.2020 CNR No.DLCT01-001428-2013 accredited lab but feigned ignorance as to whether the said lab was DERC notified lab or not.
16. PW-4 Sh. Randeep Kumar is the Assessing Officer, who had passed the Speaking Order. He deposed that he had passed Speaking Order (Ex.CW-2/K) after considering the lab report and inspection report. He stated to have issued two show notices (Ex.CW-2/G and Ex.CW2/H) for personal hearing but no reply was filed by the consumer and therefore, Speaking Order was passed ex-parte. During cross- examination, he admitted that on show cause notices (Ex.CW2/G and Ex.CW2/H), no explanations were asked from consumer regarding meter in question and about queries raised by the lab. He stated that while passing the Speaking Order, he did not analyse the consumption pattern of the burnt meter as well as of the new installed meter. However, he denied the suggestions that Speaking Order was not passed as per DERC Regulations or that he did not consider the Inspection Report and other Reports while passing the said Speaking Order.
17. While opening the arguments, counsel of complainant company had argued that that offences charged against accused no.2 have been duly proved by them beyond reasonable doubt. For the said purpose, he heavily relied upon the testimonies of the witnesses, more particularly those of PW-2 to PW-4. He contended that accused No.2 nowhere disputed throughout the trial that subject premises was not belonging to him or that he was not found present at the subject premises at the time of inspection carried by Joint Inspection Team of the complainant company, of which PW-2 was one of its members. He also argued that relevant portions of the testimonies of PW-2 and of PW-3 have gone unchallenged and unrebutted from the side of said accused and he nowhere denied the receipt of show cause notices issued to him by the Assessing Officer. Counsel for complainant BYPL Vs. Poonam & Anr. ("Acquitted") Page 7 of 16 Digitally signed by VIDYA VIDYA PRAKASH PRAKASH Date: 2020.10.19 14:18:02 +0530 CC No. 324213/16 (Old CC No.608/2013) D.O.D. : 19.10.2020 CNR No.DLCT01-001428-2013 company also relied upon Third Proviso to Section 135 (1) of the Act, in order to bring home his point that there is a presumption in favour of complainant company regarding theft or dishonest abstraction of energy, once it is proved that any artificial means or means not authorized by the licensee or supplier exists at the site. He, therefore, urged that accused No.2 namely Mohd. Azaruddin should be convicted for the offences charged against him in this case.
18. Per contra, counsel of accused No.2 vehmentally argued that the complainant company has miserably failed to establish the offences charged against said accused beyond reasonable doubt. For the said purpose, he argued that no evidence is led by complainant company to prove that subject premises was belonging to said accused or that he was actually found indulging in dishonest abstraction of energy at any point of time. For the said purpose, he also pointed out that none of the documents including Inspection Report, Load Report and Seizure Memo, bears the signature of said accused and there is no evidence to establish his presence at the subject premises on the date when inspection was allegedly carried out by Joint Inspection Team of the complainant company. He further argued that there is total non- compliance of Regulation No. 25 (III) and Regulation No.52 of DERC Regulations, 2007. In order to strengthen the said arguments, counsel of said accused referred to various clauses of Regulation No.52 of DERC Regulations, whereby Joint Inspection Team in enjoined upon to comply with the relevant directions / procedure as provided therein. Counsel further argued that the lab through which old meter was allegedly got tested by the complainant company, is also not NABL, Accredited Laboratory, as per the mandate of Clause No.(VIII) of Regulation No.52 of DERC Regulations. He further submitted that Speaking Order is also not passed as per DERC guidelines and therefore, the Assessment Bill raised by the complainant company, is totally illegal and the accused cannot be convicted for the offences BYPL Vs. Poonam & Anr. ("Acquitted") Page 8 of 16 Digitally signed by VIDYA VIDYA PRAKASH PRAKASH Date: 2020.10.19 14:18:12 +0530 CC No. 324213/16 (Old CC No.608/2013) D.O.D. : 19.10.2020 CNR No.DLCT01-001428-2013 charged against him.
19. In order to buttress his aforesaid submissions, counsel of accused No.2 also relied upon the following judgments :-
(i) J. K Steelomelt (P) Ltd. Vs. BSES Rajdhani Power Ltd. 140 (2007) DLT 563.
(ii) Udham Singh Vs. BSES Rajdhani Power Ltd. 136 (2007) DLT 500.
(iii) Col, R. K. Nayyar Vs. BSES, W. P. © No.2904 of 2005 decided on 18.04.2007 by Hon'ble Delhi High Court.
(iv) Jagdish Narayan Vs. NDPL, W.P. (C) No.10287 of 2005 etc.) decided on 18.04.2007 by Hon'ble Delhi High Court..
(v) Narinder Aggarwal Vs. BSES Rajdhani Power Ltd. W.P. (C) 1789/2011 decided on 18.03.2011 by Hon'ble Delhi High Court.
(vi) Jagannath Singh Vs. B. S. Ramaswamy (1966) 1 SCR 885.
(vii) Shyam Bihari Singhal Vs. BSES Yamuna Power Ltd. CS (OS) No.1459/2006, decided on 16.03.2011 by Hon'ble Delhi High Court.
(viii) Mukesh Mehra Vs. BSES Yamuna Power Ltd. 168(2010)DLT 6.
20. Before dealing with arguments advanced on behalf of both the sides, it would be useful to discuss the scheme of the Act. By virtue of Section 135 (2) of the Act, certain powers have been given to the Officers of specified category to be notified in the Official Gazette by the State Government, to carry out inspection of any place or premises and to search or seize / remove the devices / wires / instruments or examine or seize books of accounts / documents which are considered to be relevant for the purpose of investigation of offence under Section 135 (1) of the said Act. Not only this, Authorized Officer is also empowered by Section 135 (2) of the Act to disconnect the electricity supply in case of detection of dishonest use of electricity, with further provision for BYPL Vs. Poonam & Anr. ("Acquitted") Page 9 of 16 Digitally signed by VIDYA VIDYA PRAKASH PRAKASH Date: 2020.10.19 14:18:21 +0530 CC No. 324213/16 (Old CC No.608/2013) D.O.D. : 19.10.2020 CNR No.DLCT01-001428-2013 restoration of the electricity following the procedure as provided therein. Third Proviso attached to Section 135 (1) of the Act contains a presumption in favour of licensee / supplier to the effect that whenever it is proved that any artificial means or means not authorized by licensee or supplier, exists for the abstraction, consumption or use of electricity by the consumer then, unless the contrary is proved, it shall be presumed that such abstraction, consumption or use of electricity has been dishonestly caused by such consumer. Thus, it is quite crystal clear that the said presumption is rebuttable in nature. Section 178 of the Act empowers Central Commission to make Regulations which are to be notified. In exercise of such powers, DERC Regulations, 2007 (as were applicable during the relevant period) were promulgated by Central Commission.
21. Now, coming back to the facts of present case. As already noted above, it is the case of the complainant company that in view of old Meter No.25114324 which was installed at the subject premises on 19.10.2012 being found burnt by MMG Department, same was removed and new Meter No.14163236 was installed therein. Old meter, on testing at the laboratory by complainant company, was opined to be externally burnt and on the basis of said report, inspection was again carried out on 11.02.2013 by Joint Inspection Team of which PW-2 Sanjay Kumar Arya was its part, and accused No.2 was allegedly found to be user of the electricity and he was indulging in the dishonest abstraction of energy at the time of inspection.
22. The material witnesses examined during trial in order to establish the offences pressed against accused No.2, are PW-2 to PW- 4 as PW-1 is AR of complainant company who has admitted that he had no personal knowledge about the facts of the present case and he has merely proved the institution of the present complaint case through Competent and Authorized Officer of the complainant company.
BYPL Vs. Poonam & Anr. ("Acquitted") Page 10 of 16 Digitally signed by VIDYA VIDYA PRAKASH
PRAKASH Date: 2020.10.19
14:18:32 +0530
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CNR No.DLCT01-001428-2013
23. The testimonies of PW-2 Sanjay Kumar Arya and of PW-4 Sh. Randeep Kumar are the most relevant for the purpose of deciding as to whether the complainant company has been able to prove its case against accused No.2 Mohd. Azaruddin beyond reasonable doubt or not. No doubt, PW-2 has deposed about the factum of inspection being carried out by Joint Inspection Team at the subject premises, as also about the factum of preparation of Reports at the site and said Reports being offered to the user. However, it is important to note that said witness neither disclosed the date on which such inspection was carried out at the subject premises nor he stated about the description of the Reports which he claimed to have been prepared at the site. Not only this, said witness nowhere stated in the entire testimony that it was accused No.2 who was found present at the subject premises at the time of said inspection. He did not even identify accused No.2 during trial. In other words, there is no dock identification of accused No.2 from the side of PW-2 who is the only alleged eye witness being part of the Joint Inspection Team, examined on behalf of the complainant company during trial. There may be more than one person with the name of Azharuddin residing in the same locality. This fact assumes importance in the backdrop of the fact that the none of the documents placed on record, bears the signatures of accused herein. Thus, it could not be established beyond doubt that it was only and only accused No.2, who was found present at the subject premises or that he was indulging in dishonest abstraction of energy.
24. Apart from above, it is also relevant to note that PW-2 nowhere deposed as to who had prepared the documents at the site or the name of official who had seized the old burnt meter at the site. He also nowhere stated as to who all had signed the said documents which were claimed to be prepared at the site. This is apart from the fact that all those documents were neither put to PW-2 during post summoning BYPL Vs. Poonam & Anr. ("Acquitted") Page 11 of 16 Digitally signed by VIDYA VIDYA PRAKASH PRAKASH Date: 2020.10.19 14:18:40 +0530 CC No. 324213/16 (Old CC No.608/2013) D.O.D. : 19.10.2020 CNR No.DLCT01-001428-2013 evidence said documents were exhibited, what to say of being proved as per law, during the testimony of said witness. That being the position, it could not be established that the said documents were actually prepared at the site. Since, the said documents have not been proved by the witness of complainant company during trial, same, even if available on record, cannot be looked into or considered by the Court, as per the settled proposition of law.
25. Moreover, it is the specific case of complainant company that old burnt meter was seized at the site itself. PW-2 deposed during cross- examination that said seized burnt meter was brought to their office from the site. However, he could not disclose as to whether said burnt meter was actually sealed or not. In case, the old seized meter was not immediately sealed then the possibility of tempering in the said meter at subsequent point of time, cannot be ruled out. Same creates reasonable doubt in the case of complainant company, the benefit of which must go in favour of the accused. Furthermore, seized meter was never produced during trial before the Court. The said meter was neither shown to PW-2 during his testimony nor it was shown or put to PW-3 Ms. Shweta, under whose supervision the said meter was allegedly tested in the lab. PW-3 was very much in a position to identify the said Meter. For this reason also, Court agrees with the submission made on behalf of the accused that the complainant company has failed to prove the offences charged against accused No.2 in this case.
26. Further more, it is pertinent to mention here that the entire case of complainant company was mainly based upon Report No.BY12/33514, dated 04.12.2012 wherein it was concluded after testing the old seized meter that the said meter was found externally burnt. The said document was the material piece of evidence, on the basis of which complainant company could have proved the relevant offence regarding dishonest abstraction energy which is punishable u/s BYPL Vs. Poonam & Anr. ("Acquitted") Page 12 of 16 Digitally signed by VIDYA VIDYA PRAKASH PRAKASH Date: 2020.10.19 14:19:02 +0530 CC No. 324213/16 (Old CC No.608/2013) D.O.D. : 19.10.2020 CNR No.DLCT01-001428-2013 138 of the Act. However, the said report was neither put to PW-2 who is member of the raiding team, nor it was put to PW-3 under whose supervision the old meter was allegedly tested in the laboratory. There is nothing on record to show as to who had prepared the said lab report and what was the basis of arriving at the aforesaid conclusion that the old meter was externally burnt. For the reason that said lab report has not been proved from the side of complainant company during post- summoning evidence, it cannot be looked into as a piece of evidence for the benefit of the complainant company.
27. There are other reasons which further persuade this Court to hold that the complainant company has not been able to prove the allegations levelled against the accused in this case. It is claimed that old seized meter was got analysed from the Lab of the complainant company situated at Savita Vihar. There is no Iot of evidence placed on record from the side of complainant company, which may show that said lab was NABL, Accredited Laboratory, as is the mandate contained in Regulation No. 52 (VIII) of DERC Regulations. For this purpose, the relevant portion of cross-examination of PW-3 wherein she feigned ignorance regarding said lab being DERC notified lab or not, is very relevant. No document regarding Accreditation / Certification of said lab from NABL, is placed on record by the complainant company. Aforesaid Regulation is clearly stipulate that electricity meter has to be got tested through NABL Accredited Laboratory and thus non compliance thereof in further puts dent on the case of the complainant company. It is also relevant to note that Assessing Officer i.e., PW-4 is also not shown to have passed the Speaking Order (Ex.CW-2/K) as per DERC guidelines. PW-4 admitted during his cross-examination that he did not analyse the consumption pattern of either burnt meter or of new installed meter. It has been held by Hon'ble High Court of Delhi in series of judgments including those relied upon on behalf of accused that before arriving at the finding of DAE, the Assessing Officer is BYPL Vs. Poonam & Anr. ("Acquitted") Page 13 of 16 Digitally signed by VIDYA VIDYA PRAKASH PRAKASH Date:
2020.10.19 14:19:10 +0530 CC No. 324213/16 (Old CC No.608/2013) D.O.D. : 19.10.2020 CNR No.DLCT01-001428-2013 required to observe the consumption pattern of the consumer and in the absence of DAE having been established from the consumption pattern, no case for DAE is made out. It has been further held in those judgments that mensrea or intention of the consumer to dishonestly abstract electricity must be proved conclusively to bring home the charge of DAE and also that mere external manifestation of tempering can only raise suspicion, which cannot take the place of proof.
28. A bare perusal of the Speaking Order (Ex.CW-2/K), which is the own document of the complainant company, would reveal that no cogent reason / ground whatsoever has been mentioned therein for arriving at the conclusion regarding DAE by the Assessing Officer. The relevant portion of the said Speaking Order is reproduced for ready reference as under :
"XXXX The inspection was carried out in accordance of law and connected load has been considered as per inspection report considering seasonal load in accordance with the stipulated of DERC given above in tabular form. The consumer was offered to sign the inspection reports at site but he refused to sign. Therefore, the reports were sent alongwith show cause notice, Future the onus of safe custody of meter lies with the consumer in accordance to regulation 35 (iii) of DERC SC & PC of DERC, 2007. Therefore the observation of inspecting team are considered in order especially under the circumstances as the case has been well photographed / video graphed with respected to position and connected load at site.
In view of the foregoing facts DAE is established and accordingly, the following order is passed :- 1. DAE bill is to be raised for the period 15.02.2012 to 18.10.2012 as per Tariff Schedule, 2006-07 and Regulation 52 & 53 of Metering & Billing Regulations of DERC 2007 and section 135 & 138 of Electricity Act, 2003.
xxxxx"
29. Not only this, show cause notices (CW-2/G and CW-2/H), although were allegedly sent to accused persons as per case of the complainant company but necessary proof regarding dispatch of said notices and actual delivery of said notices upon accused No.2, has not been placed on record, without which, cannot be said that said show cause notices were actually received by accused No.2 and consequently, any opportunity of hearing, as per the requirements of BYPL Vs. Poonam & Anr. ("Acquitted") Page 14 of 16 Digitally signed by VIDYA VIDYA PRAKASH PRAKASH Date: 2020.10.19 14:19:22 +0530 CC No. 324213/16 (Old CC No.608/2013) D.O.D. : 19.10.2020 CNR No.DLCT01-001428-2013 Principles of Natural Justice, was provided to him. For all these reasons, Court finds substance in the argument raised on behalf of the accused no.2 that Speaking Order on the basis of which Assessment Bill (Ex.CW-2/L) was raised against accused no.2 by the complainant company, does not stand on the scrutiny of law. Therefore, same is not found to be correct or justified under the law.
30. It may be noted that Regulation 52 (ix) of Delhi Electricity Supply Code and Performance Standards (DERC) Regulations, 2007 requires that in the event of refusal by the consumer or his/ her representative to either accept or give a receipt, a copy of the Inspection Report must be pasted at a conspicuous place in / outside the premises and photographed. Simultaneously, the Report shall be sent to the consumer through Registered Post.
31. In the case titled as "BSES Yamuna Power Ltd. Vs. Sh. Shamim Ahmed", Crl. LP No. 723 of 2018, decided on 1 November, 2018, Hon'ble Delhi High Court while discussing with the requirement of Regulation 52 (ix) of Delhi Electricity Supply Code and Performance Standards (DERC) Regulations, 2007 has held as under:-
"xxxx It is odd that if a raid was conducted, there is no record of the date and time as to when so done; that the raiding team did not remember the date or the time or when the police assistance was requested and there is no explanation as to why the requirement of Regulation 52 (ix) of the Delhi Electricity Supply Code and Performance Standards (DERC) Regulations, 2007, which is imperative, was not followed nor is there any explanation as to why the complaint was made three months later..." thus, the Court finds no reason to interfere with the impugned order. The petition is without merit and the same is accordingly dismissed.
Xxxx"
32. In the case titled as "BSES Rajdhani Ltd. Vs. Usha Shokeen & Anr". Crl LP No.514/2018 decided on 07 August, 2018, Hon'ble Delhi High Court has observed as under:-
"xxxx In a criminal trial, it is for the prosecution to prove its case beyond all reasonable doubt; it must stand on his legs. This Court is of the view that the BYPL Vs. Poonam & Anr. ("Acquitted") Page 15 of 16 Digitally signed by VIDYA VIDYA PRAKASH PRAKASH Date: 2020.10.19 14:19:33 +0530 CC No. 324213/16 (Old CC No.608/2013) D.O.D. : 19.10.2020 CNR No.DLCT01-001428-2013 appellant is right in his submissions that there is no document on record to show that the appellant was either the owner or the occupier or the user of the said premises and was using the electricity generated from the illegal meter installed at that premises. It is not the case of the prosecution that this illegal meter was found installed in the premises of the appellant. Prosecution having failed to prove this necessary ingredient, the case of the prosecution must fail. Section 135 of the Electricity Act positively pre-supposes a situation that a dishonest abstraction of electricity and its use must be established against the party before that party can be nailed.
xxxx"
33. In the light of aforesaid discussion, Court is of the considered opinion that the complainant company has failed to prove the offences charged against accused no.2 namely Mohd. Azaruddin beyond reasonable doubt. Consequently said accused stands acquitted of the charges levelled against him. The amount, if any, deposited by accused no.2 in terms of any interim order / direction passed by the Court in the present proceedings, shall be refunded by complainant company to said accused after expiry of the period of appeal, as per the rules. Accused however, is, directed to furnish personal bond in the sum of Rs.20,000/- with one surety in the like amount in terms of Section 437A Cr.PC. He is directed to appear before Ld. Appellate Court in case any appeal is preferred by complainant company against the judgment passed by this Court.
34. File be consigned to Record Room after due compliance.
Digitally signed by VIDYA VIDYA PRAKASH
PRAKASH Date: 2020.10.19
14:16:16 +0530
(Vidya Prakash)
Addl. Sessions Judge (Electricity)
Central District/ THC/Delhi
19.10.2020
BYPL Vs. Poonam & Anr. ("Acquitted") Page 16 of 16