Delhi District Court
Brpl vs . A.D. Rappai And Anr. Cc No. 319/09 Page 1 on 26 September, 2018
IN THE COURT OF MS REKHA,
ADDITIONAL SESSIONS JUDGE, (SPECIAL COURT)
ELECTRICITY, CENTRAL DISTRICT, TIS HAZARI COURT,
DELHI
CC No.319/09
New Case No. 326082/16
BSES Rajdhani Power Ltd.,
Having its Registered office at:
BSES Bhawan, Nehru Place,
New Delhi - 110019.
And its Corporate, Legal and Enforcement Cell:
Near Andrews Ganj Market, New Delhi-110049.
Acting through: Sh. Ashutosh Kumar
(Authorized Representative) ........ Complainant
Verses
1. A.D.Rappai (User)
C/o Praise Communication,
Shop No.105, Raksha Vikash CGHS,
DDA Market, Vikaspuri, New Delhi .......Accused no.1
2. Ashok Kumar (User)
Shop No.105, Raksha Vikash CGHS,
DDA Market, Vikaspuri, New Delhi .......Accused no.2
Date of Institution : 01.09.2009
Date of Judgment : 26.09.2018
Final Order : Both accused acquitted.
BRPL Vs . A.D. Rappai and Anr. CC NO. 319/09 page 1
JUDGMENT
1). The complainant company i.e. BSES Rajdhani Power Ltd. (in short 'BRPL') has filed the present complaint case Under Section 135, 138, 151, 150 and 154 (5) of the Electricity Act 2003, (hereinafter referred as 'Act') against the accused persons praying that accused persons be summoned, tried and punished as per law and for determining the civil liability of the accused persons.
2) The brief facts in narrow compass, relevant and necessary for the disposal of the present case are that present complaint was filed by the complainant acting through the authorized representative/officer-Mr. Ashutosh Kumar who was duly authorized by Chief Executive Officer (CEO) of the complainant company vide General Power of Attorney dated 18.08.2009. As per the case of the complainant company, property bearing No. Shop No.105, Raksha Vikash, CGHS, DDA Market, Vikas Puri, New Delhi (hereinafter referred as subject property) was being used by accused no. 1 where the electricity BRPL Vs . A.D. Rappai and Anr. CC NO. 319/09 page 2 meter bearing No. 23416559 (hereinafter referred as subject meter) was installed of which the accused no. 2 was the registered consumer. It is also stated that as per dirction of DGM, Enforcement, BRPL, the joint Inspection team of the complainant company comprised of Sh.Rajesh Singhal (Assistant Manager- Enf.), Sh.Mohit Sibbal (Manager-Enf.), Sh.Shabbi Abbas (DET- Enf.), Sh.Subhash & Sh.Devender carried out an inspection at subject property on 10.07.2008 at around 12:45 Hrs. It is stated that inspection team was headed by Sh.Rajesh Singhal-AM (Enf.) and at the time of raid, the accused persons were found using the electricity for the non-domestic (NX) purpose i.e. running a praise communication office. It is stated that the black scroll button of the electronic meter no.23416559 found missing i.e. black button was not present on the meter due to which the PCB circuit below the hole found clearly visible and the spot marks on the circuit below the hole of the scroll button. Accordingly, the inspection team segregated the meter in the presence of the accused and found that there were illegal marks on the PCB circuit below the button side as the accused deliberately altered the PCB circuit to disturb BRPL Vs . A.D. Rappai and Anr. CC NO. 319/09 page 3 the functions of the meter so that the meter could not record the proper consumption. It is stated that hence, declared a case of DAE (Dishonest Abstraction of Energy). The connected load to the inspected premises had been assessed by the inspection team as 8.945 KW/DAE/ NX. It is further stated that necessary photographs of the connected load were taken at the site and meter bearing no.23416559 was seized as per seizure memo. The supply was restored by the MMG by installing new meter. It is stated that material evidence i.e. one Electronic meter no.23416559 seized and seizure memo was prepared at the time of inspection bearing signature of Sh. Rajesh Singhal, AM, Enf. At the time of raid necessary photography/ videography showing the irregularities was taken by the member of joint inspection team. It is stated that accused refused to sign the inspection, load and the seizure memo prepared by the members of the raiding team. Accordingly, show cause notice for DAE was sent to the accused vide letter dated 10.07.2008 to file reply latest by 17.07.2008 as to why action should not be initiated for DAE. It is further stated that notice was sent to accused for attending personal hearing on BRPL Vs . A.D. Rappai and Anr. CC NO. 319/09 page 4 24.07.2008 at around 11:00 am before the Assessing Officer of the complainant company. It is stated that one Sh.Barun Raj representative of accused no.1 attended the personal bearing on 24.07.2008 and submitted that the shop existed in the premises for last one year and they were not aware of any discrepancies in the meter as mentioned in the inspection report. It is stated that Assessing Officer passed a speaking order 01.01.2008 whereby as per record and evidence available it was concluded that the meter bearing no.13328579 regarding which inspection had been conducted was installed on 25.06.2007. The meter working at the site was found to be tampered. It is further stated on segregation of the meter and it was observed that illegal marks on PCB circuit below the button side. Artificial means were detected at the time of inspection and thus conclusive proof of DAE being detected at the time of the inspection. Thus the case of the accused falls within the ambit of DERC as well as u/s 135 & 138 of the Electricity Act 2003 as the accused had been dishonestly and deliberately damaged/ destroyed the electronic meter installed, so as to interfere with the proper and accurate metering of the electricity BRPL Vs . A.D. Rappai and Anr. CC NO. 319/09 page 5 and thereby establishing the allegation of DAE against the accused persons. Hence, the theft assessment bill for DAE in the sum of Rs. 1,34,811/- has been raised by the complainant company against the accused, which was payable to the complainant company by the accused persons. It is stated that a copy of the said assessment, in form of a supplementary bill dated 06.08.2008 for theft of electricity has been served on the accused. In given fact and circumstances of the case, present suit has been filed.
3). The complainant company led the pre summoning evidence. Vide order dt. 26.03.2010, the accused persons were summoned for the offence alleged against them.
Vide order dt. 14.03.2012, notice U/s 251 Cr.PC was served upon the accused persons for the offence punishable U/s 135, 138 R/w Section 150 of Electricity Act, 2003, to which accused persons pleaded not guilty and claimed trial.
4). In this case, the complainant company has examined only two witness, so as to prove its case, namely PW1 Sh.Rajesh Singhal-Manager & PW2-Sh.Mohit Sibbal-DGM. BRPL Vs . A.D. Rappai and Anr. CC NO. 319/09 page 6
5). PW01-Rajesh Singhal testified that on 10.07.2008, at about 12:45 PM he along with Sh. Mohit Sibbal, (Deputy Manger) Sh. Shabbi Abbas (DET), Sh. Subhash (Lineman) Sh. Davinder Pandey (Lineman) inspected the premises bearing no. 105, CSC Rakshsha Vikas, Vikas Puri, New Delhi-18. He testified that one single phase electronic meter was found installed at the site. Black push button of the said meter was found missing thus creating a hole in the meter through which the PCB circuit of the meter can be accecced. He further testified that illegal spot marks found present on the PCB board of the meter below the black push button of the meter. Joint team segregated the meter at the site and illegal spot marks found on the PCB board of the meter which were due to illegal inserting of pin like substance through the hole created due to removal of black push button. They took photographs which were already exhibited as Ex.CW 2/D (colly) and CD Ex.CW 2/D 1 of the loads and meter in question. The meter was seized and supply was restored through a new meter. They prepared reports, i.e. meter details report, Inspection report, load report, seizure memo, etc. and same were exhibited as Ex. BRPL Vs . A.D. Rappai and Anr. CC NO. 319/09 page 7 CW 2/A to Ex. CW 2/C and same bears his signature at point "A" on each and every page of the reports. They also prepared show cause notice at site. The consumer refused to accept the show cause notice. The show cause notice is already Ex. CW 2/E. He testified that the accused namely A.D. Rappai was present at the site at the time of inspection however, he could not recognize him in the court that day due to lapse of time.
At that stage, one sealed gunny bag was produced before the court with illegible marks. The seal was broken and bag was opened, it contained one single phase electronic meter bearing no. 23416559 having paper seal signed by him at point "A" and carbon copy of seizure memo, the original of which was already placed on the record having Ex. CW 2/C. Meter Ex. P1 and carbon copy of seizure memo Ex. P2. He correctly identified the same.
6). PW-2 Sh. Mohit Sibbal testified that on 10.07.2008 at around 12.45 pm, he along with Sh.Rajesh Signhal (AM), Sh.Devender Pandey and Subhash (L/M) and Sh.Shabir Abbas (DET) inspected the premises no. 105, Raksha Vikas Apartment, BRPL Vs . A.D. Rappai and Anr. CC NO. 319/09 page 8 Vikas puri, New Delhi. He testified that that one single phase meter was found at site. The black push button of the meter in question was found missing due to which a hole was created in the meter. They further found that in the hole illegal spot / marks were present in the PCB circuit of the meter as the PCB circuit could be easily accessed from the hole. They segregated the meter and illegal marks seen on the PCB circuit of the meter. He testified that the illegal marks created due to the insertion of illegal object /pin type to suppress the consumption of the meter and thereafter, they seized the meter at site. They captured the photographs already Ex.CW2/D colly. and CD of the same was also prepared vide Ex.CW2/D1. They had prepared all the reports at site and the show cause notice was also issued to the accused. He further testified that he had also signed on the inspection reports, load report, seizure memo vide Ex.CW2/A to Ex.CW2/C and his signatures were at point B in the above documents Ex.CW2/A to Ex.CW2/C and ExCW2/E. Again said, he did not recollect, if he had signed over the seizure memo Ex.CW2/C. They had offered the aforesaid reports and seizure memo as well BRPL Vs . A.D. Rappai and Anr. CC NO. 319/09 page 9 as show cause notice to the accused, who refused to accept the same at site. After seizing the meter in question, the supply was restored through new meter. However, that day, he did not recollect the number of new meter installed at the site due to lapse of time. Thereafter, they had handed over the file in their office at Hari Nagar. He testified that he could identify the case property, if shown to him. At that stage, one plastic bag with broken seal was produced and same was opened and out of it one single phase electronic meter was taken out. After seeing the single phase electronic meter bearing no. 23416559, the witness states that the meter was the same which was seized at the site of inspected premises vide seizure memo Ex.CW2/C. He identified the meter bearing no. 23416559 seized at the site as Ex.P1. After seeing the accused no.1, PW2 further testified that he could not identify the accused due to lapse of time as inspection was done on 10.07.2008.
7). Statement U/s 313 Cr.P.C, of accused persons had been recorded, in which they had denied the allegations against BRPL Vs . A.D. Rappai and Anr. CC NO. 319/09 page 10 them. AccusedA.D. Rappai stated that no inspection was carried out at the subject property and no reports were prepared in his presence at the site. He could not tell whether any photography was done or not as he was not present at site. He also stated that he had not committed any alleged offence of electricity theft/DAE and he had been falsely implicated in the present case. Accused Ashok Kumar stated that he did not know whether inspection was carried out or not and he was not present. He also stated that he had not committed any alleged offence of electricity theft/DAE and he had been falsely implicated in the present case. He also stated that in the year 2007, he sold this property to wife of A.D. Rappai and he was not the owner of the property at the time of all these incidents took place.
8). I have heard the arguments and perused the material available on record as well as relevant provisions.
It is to note here that as per the complaint, present complaint was filed by the complainant acting through the authorized representative/officer-Mr. Ashutosh Kumar who was duly authorized by Chief Executive Officer (CEO) of the complainant company vide General Power of Attorney dated BRPL Vs . A.D. Rappai and Anr. CC NO. 319/09 page 11 18.08.2009.
It is very relevant to pen down here that neither Ashutosh Kumar nor any of other person has been examined on behalf of the complainant company in post-summoning evidence to prove its complaint. Had, any of them examined, the accused would have definitely got an opportunity to cross-examined them.
Hence, view of the Court is that the complainant company failed to prove that the present complaint case had been filed by duly authorized person.
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 report must be pasted at a conspicuous place in/outside BRPL Vs . A.D. Rappai and Anr. CC NO. 319/09 page 12 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 PW02 Mohit Sibbal, they prepared all the reports at site and show cause notice was also issued to the accused and they had offered the inspection reports and seizure memo as well as show cause notice to the accused who refused to accept the same and during the crossexamination, he stated that accused/user present at the site did not allow them to paste the reports. It is also worthwhile to mention here that PW01Sh. Rajesh Singhal only testified regarding preparation of Inspection Report, Meter Detail Report, Load Report and Seizure Memo but did not testify regarding, offering, refusal and pasting. Only during the crossexamination, he stated that he offered the inspection report to accusedA.D. Rappai who was present at the spot but he did not say a word regarding refusal and pasting.
BRPL Vs . A.D. Rappai and Anr. CC NO. 319/09 page 13 It is very relevant to pen down here that perusal of alleged inspection report i.e. Ex. CW2/A, it is found that nowhere it has been mentioned that the alleged reports were offered to accused and he refused to accept the same & did not allow to paste the same.
Here, it is said that PW1 during cross-examination after thought stated that he offered the inspection report to accused A.D. Rappai who was present at the spot. It is also view of the Court is that PW2 just to fill up the lacunae testified that they had offered the inspection reports and seizure memo as well as show cause notice to the accused who refused to accept the same at site. Had it so, it would have mentioned in Inspection Report Ex. CW2/A. It is to note here that no document has been proved on record that the accused persons had been served the inspection report through registered post.
Hence, here view of the Court is that the complainant BRPL Vs . A.D. Rappai and Anr. CC NO. 319/09 page 14 company failed to prove that the alleged above-said documents were ever served upon the accused persons.
So, in light of abovesaid regulation, complainant company failed to prove that it has complied with the abovesaid regulation.
It is also to note here that as per the testimony of the PW1Sh. Rajesh Singhal and PW02Sh. Mohit Sibbal, there were five members in the alleged inspection team namely Sh. Rajesh Singhal(AM), Sh. Mohit Sibbal (Deputy Manager), Sh. Shabbi Abbas (DET), Sh. Subhash (Lineman) and Sh. Devender Pandey(Lineman).
It is very relevant to pen down here that perusal of the inspection report Ex. CW2/B, it is found that only two signatures are appearing.
Here, it is said that what stopped the remaining three alleged members of the alleged inspection team to sign the BRPL Vs . A.D. Rappai and Anr. CC NO. 319/09 page 15 alleged inspection report. It is further view of the Court is that in view of relevant Regulation 52 (ix) of Delhi Electricity Supply Code and Performance Standards Regulation, 2007, the inspection report should have signed by all the members.
In light of abovesaid discussion, view of the Court is that Regulation 52 (ix) of Delhi Electricity Supply Code and Performance Standards Regulation, 2007 has not been complied with by the alleged inspection team members.
It is also to note here that as per the complaint of the complainant, accused refused to sign the inspection, load and the seizure memo prepared by the members of the raiding team at the time of raid & inspection. Accordingly, show cause notice for DAE was sent to the accused vide letter dated 10.07.2008 for filing reply latest by 17.07.2008 as to why action should not be initiated for DAE. It is further stated that notice was sent to accused for attending personal hearing on 24.07.2008 at around 11:00 am before the Assessing Officer of the complainant company. It is BRPL Vs . A.D. Rappai and Anr. CC NO. 319/09 page 16 stated that one Sh.Barun Raj representative of accused no.1 attended the personal bearing on 24.07.2008 and submitted that the shop existed in the premises for last one year and accused are not aware of any discrepancies in the meter. It is stated that Assessing Officer passed a speaking order 01.01.2008 whereby as per record and evidence available it was concluded that the meter bearing no.13328579 regarding which inspection had been conducted was installed on 25.06.2007.
It is relevant to pen down here that no Assessing Officer has been examined in this case to prove the alleged speaking order. Hence, view of the Court is that the complainant company failed to prove the alleged speaking order.
The provision of Regulation 52 (viii) of Delhi Electricity Supply Code and Performance Standards Regulation, 2007, is reproduced as under:
(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 BRPL Vs . A.D. Rappai and Anr. CC NO. 319/09 page 17 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.
As per the testimony of PW-01 and PW-02, inspection team segregated the meter at the site and illegal spot marks found on the PCB board/circuit of the meter but they did not testify regarding sending the subject meter in the lab for testing. It is very very relevant to pen down here that during the cross-examination, PW-02 admitted that inspection team had not sent the meter in question for testing in the lab.
Admittedly, the meter in question was not sent to the any lab what to say of sending the meter in question to NABL accredited laboratory for testing. Here, view of the Court in view of above-said provision is that the subject meter should have been sent to the lab for BRPL Vs . A.D. Rappai and Anr. CC NO. 319/09 page 18 testing as per above-regulation. Hence, the complainant company has not complied with the aforesaid regulation.
It is also to note here that as per the testimony of PW01 and PW02, they took photographs which were already exhibited as EX. CW2/D (colly) and CD Ex. CW2/D1.Here, it is said that it is not clear that by whom the alleged photography had been done. No photographer has been examined by the complainant company in this case who allegedly clicked the photography.
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 photographs EX. CW2/D and CD Ex. CW2/D1. Thus, the complainant company has failed to prove the photography in the present case in accordance with law. Therefore, the photographs EX. CW2/D and CD Ex. CW2/D1 are of no help for the case of the complainant company.
In the present matter, as per the case of complainant company, there were five members in the alleged BRPL Vs . A.D. Rappai and Anr. CC NO. 319/09 page 19 inspection team namely Sh. Rajesh Singhal(AM), Sh. Mohit Sibbal (Deputy Manager), Sh. Shabbi Abbas (DET), Sh. Subhash (Lineman) and Sh. Devender Pandey(Lineman). It is very relevant to pen down here that complainant company examined only two alleged members out of five members of alleged inspecting team. Here, it is said that, had the complainant company examined remaining other alleged members of the alleged inspection team, the accused persons definitely would have got the opportunity to crossexamine them.
In view of abovediscussion, the complainant company has failed to prove the offence alleged against both accused persons namely A.D. Rappai and Ashok Kumar beyond reasonable doubt in the present case. Thus, the accused namely A.D. Rappai and Ashok Kumar are entitled for acquittal. Accordingly, accused namely A.D. Rappai and BRPL Vs . A.D. Rappai and Anr. CC NO. 319/09 page 20 Ashok Kumar are acquitted for the offence punishable Under Section 135, 138 R/w Section 150 of the Electricity Act, 2003. Bail bonds of the both accused persons stand canceled and their respective sureties are also discharged. Amount, if any, deposited by the accused persons as a condition for bail or in pursuance to interim order of the court qua the theft assessment bill raised by the company on the basis of alleged inspection dated 10.07.2008 be released by the complainant company after expiry of the period of appeal. It is to note here that bail bonds U/s 437 (A) Cr.P.C. of both accused persons have been furnished and accepted. File be consigned to Digitally signed by REKHA record room after due compliance. REKHA Date: 2018.09.26 16:32:55 +0530
Announced in open court (Rekha ) on day of 26th September 2018 ASJ(Special Court)Electricity, Tis Hazari Courts, Delhi BRPL Vs . A.D. Rappai and Anr. CC NO. 319/09 page 21