Delhi District Court
Brpl vs . Manil Kumar Vats Page No. 1 Of 15 on 20 December, 2022
IN THE COURT OF SH. VINOD KUMAR MEENA,
ADDITIONAL SESSIONS JUDGE, SPECIAL
ELECTRICITY COURT, SOUTH WEST DISTRICT,
DWARKA COURTS, DELHI
Ct. Case No. 425048/2016
CNR No. DLSW01-006470-2016
BSES Rajdhani Power Limited
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 Mr. Ashutosh Kumar
(Authorized Representative) .....Complainant
Versus
Manil Kumar Vats (User & R.C.)
R/o Plot at Khasra no. 216, Pole no. 583,
Near BSES Pole No. JFPV583, Village Mitraon,
Division- Jaffarpur, New Delhi
......Accused
Date of institution of the case : 09.09.2016
Date of commission of offence : 31.05.2016
Offence complained of : U/s 135/138 Electricity
Act
Plea of the accused : Pleaded not guilty
Final order : Acquittal
Date on which judgment reserved : 13.12.2022
Date of judgment : 20.12.2022
Ct. Case No. 425048 of 2016
BRPL Vs. Manil Kumar Vats Page No. 1 of 15
- :: JUDGMENT :: -
1.Vide this judgment, the court shall decide the present complaint case which is filed by complainant BSES Rajdhani Power Ltd. U/s 135/138 of Electricity Act against accused Manil Kumar Vats.
2. Before proceeding further on deciding the present matter on merits, the brief facts of the case are mentioned herein as under:
Brief facts:
I. It is the case of complainant that on 28.03.2016, Meter Management Group (MMG) department of the complainant company removed the single phase electronic meter bearing no. 21888794(hereinafter referred as impugned meter) installed against CA No. 151230178 for the premises Plot at Khasra No. 216, Pole No.583, Near BSES Pole No.JFPV583, Village Mitraon, Division- Jaffarpur, New Delhi (hereinafter referred as impugned premises) and restored the supply of the premises through a new electronic meter bearing no. 26261445. The meter bearing no. 21888794 was sent to the laboratory in sealed condition for testing/analysis under intimation to the accused that he may witness the testing/analysis of the meter in laboratory. The letter issued to the consumer dated 28.03.2016 is Ex. CW1/A. II. On 26.04.2016, the impugned meter was tested by the Ct. Case No. 425048 of 2016 BRPL Vs. Manil Kumar Vats Page No. 2 of 15 laboratory and as per lab report, meter found abnormally burnt and the said lab report is Ex. CW1/B. III. On 31.05.2016, at about 12:10 PM(hereinafter referred as impugned date and time), a BSES team comprising of Sh. Girish Bansal (Assistant Manager, BSES), Sh. Abhishek(Engineer, BSES), Sh. Nikhil(Technician, BSES) and Sh. Chandan(Videographer, M/S Skylark Photo Studio) visited premises of accused i.e. Plot at Khasra no. 216, Pole no. 583, Near BSES Pole No. JPFV583, Village Mitraon, Jafarpur, New Delhi for an inspection in furtherance of lab report.
IV. Connected load of the premises could not be assessed due to heavy resistance created by accused and hence sanctioned load of 2 KW/DX is taken as connected load.
V. Members of BSES raiding/inspection team prepared the Inspection Report Ex. CW1/C, Load Report Ex. CW1/D and Seizure memo Ex. CW1/E. Accused refused to receive and sign the reports/memos. Based on these reports, complainant raised a theft bill Ex. CW1/I of Rs 42,094/- against the accused.
VI. Photography could not be done at site due to resistance caused by accused.
VII. Complainant alleged that accused acted dishonestly with an intention to cause wrongful gain to himself and wrongful loss to it, employed an illegal method to steal electricity. He illegally abstracted and consumed electricity Ct. Case No. 425048 of 2016 BRPL Vs. Manil Kumar Vats Page No. 3 of 15 without paying the applicable tariff and to destroy the evidence, he deliberately burnt the meter. He is thus alleged to have committed direct theft of electricity punishable under section 135/138 of Electricity Act, 2003.
VIII. On these averments, complainant lodged the instant complaint alleging commission of offence punishable under section 135/138 of Electricity Act, 2003 through its authorised representative Mr. Ashutosh Kumar.
3. Copy of complaint and supporting documents were supplied to the accused. After hearing arguments, notice u/s 251 of Cr.P.C for the offence under section 135/138 of Electricity Act, 2003 was served upon accused Manil Kumar Vats to which he pleaded not guilty and claimed trial.
Complainant's evidence:
4. In complainant's evidence, following five witnesses were examined.
I. Complainant produced Sh. Girish Bansal, Assistant Manager, BSES as PW-1. He deposed that he was a member of the raiding team and on 31.05.2016, at about 12:10 PM, he and the team comprising of Sh. Abhishek Kumar (Engineer, BSES), Sh. Nikhil (Technician) and Sh. Chandan(Videographer from M/S Skylark Photo Studio) on the basis of lab report visited and inspected the premises bearing no. Plot at Khasra no. 216, Pole no. 583, Village Mitraon, Jafarpur, New Delhi. He further deposed that Ct. Case No. 425048 of 2016 BRPL Vs. Manil Kumar Vats Page No. 4 of 15 during inspection, the premises was being used by accused Manil Kumar Vats, who was also the registered consumer. He further deposed that accused did not allow them to assess the connected load hence they recommend the sanctioned load or the MDI whichever was higher as connected load. He further deposed that due to resistance at site, they could not take the photographs and make videography during inspection. He further deposed that raiding team prepared the Inspection Report Ex. CW1/C, Load Report Ex. CW1/D and Seizure memo Ex. CW 1/E. He further deposed that after preparation of the reports, they offered the same to accused to receive and sign the same but he refused and also did not allow them to paste the same at the premises. During his cross-examination by Ld. Defence counsel, he denied the suggestions put by the defence. He further corroborated the version of complaint in his cross- examination.
II. Complainant produced Sh. Abhishek, GET, BSES as PW-2. He deposed on the same lines as of PW-1. During his cross-examination by Ld. Defence counsel, he denied the suggestions put by the defence.
III. Complainant produced Sh. Bhaskar Chattopadhyay, General Manager, BSES as PW-3. He deposed that on 27.06.2016 he was posted at BSES, Hari Nagar and he had given a personal hearing to accused/consumer Manil Kumar Vats. He further deposed that he had considered the Ct. Case No. 425048 of 2016 BRPL Vs. Manil Kumar Vats Page No. 5 of 15 inspection report, load report and seizure memo, laboratory report, photographs taken at time of meter testing in lab, consumption patter of the meter and then he had passed the speaking order. The speaking order along with consumption pattern of the meter is Ex. CW-1/H(Colly). He further deposed that he had also recorded the submission of consumer at time of personal hearing and same is mentioned in Note sheet which is Ex. CW-1/G. He further proved copy of driving licence and adhar card of accused/consumer during personal hearing as Ex. PW3/A and Ex. PW3/B. During his cross-examination by Ld. Defence counsel, he denied the suggestions put by the defence.
IV. Complainant produced Sh. Saurabh Vashishta, Assistant Manager, BSES Meter Testing Lab as PW-4. He deposed that on 26.04.2016 he along with Sh. Yogesh Ray(Engineer) received a sealed gunny bag from the laboratory store for testing of meter and after opening the gunny bag, a burnt meter was taken out. He further deposed that he took photographs of that meter. He further deposed that meter was tested by Sh. Yogesh Ray in his presence. He further deposed that data of meter could not be downloaded and accuracy of meter could not be done as it was burnt and after that they concluded that the meter terminal block and body found abnormal burnt. He further deposed that laboratory report Ex.CW1/B was prepared by Sh. Yogesh Ray (Engineer) which was approved by him on 26.04.2016. He further proved photographs of the burnt meter as Ex.
Ct. Case No. 425048 of 2016 BRPL Vs. Manil Kumar Vats Page No. 6 of 15PW4/A(colly.) and meter bearing no. 21888794 as Ex. P-1. During his cross-examination by Ld. Defence counsel, he denied the suggestions put by the defence.
V. Complainant produced Sh. Ashutosh Kumar, Authorized Representative of complainant as PW-5. He deposed that he had been authorised vide Power of Attorney Ex. PW5/A to institute the present complaint. During his cross-examination by Ld. Defence counsel, he denied the suggestions put by the defence.
Statement of accused:
5. Examined under section 313 of CrPC, accused pleaded innocence. He, inter alia, stated, "The meter was burnt automatically. I do not remember if any notice was served upon me or attended the personal hearing. All the allegations against me are false. BSES officials never visited my premises. There is no witnesses of the inspection. No videography was conducted in my premises. All the reports/memos prepared by BSES officials are false and fabricated. I have already filed a civil suit against BSES in Civil Court which was decided in my favour on 22.07.2020".
Defence Evidence:
6. In defence evidence, pursuant to an application under section 315 of CrPC that was allowed vide order dated 06.05.2022, accused entered the witness box and examined himself as DW1. He, inter alia stated that in March 2016 Ct. Case No. 425048 of 2016 BRPL Vs. Manil Kumar Vats Page No. 7 of 15 electricity meter was installed in his premises which was automatically burnt and his house was locked at that time and neighbors told him about the fire in his house and when he reached his house, he found that electricity meter and all the valuable items lying in the houses were burnt. He further stated that he visited to electricity office and lodged a complaint and thereafter, officials of BSES visited to his premises and temporarily restored the electricity supply and BSES officials told him that sometimes meter got burnt due to rain and moisture and after 10-15 days, a new meter was installed in his premises.
He further stated that he received a regular bill of Rs. 120/- from BSES and when he tried to make online payment, approximately bill of Rs. 2700/- was shown. To this, he made a complaint to BSES office, Najafgarh Division but they did not listen the complaint then he further made a complaint to Deputy General Manager, BSES, Hari Nagar then DGM informed that the meter will be disconnected if he will not pay the same as it was charges of new electricity meter. He further stated that in the month of July, 2016 he received a theft bill of Rs. 42,094/- and to this he made a further complaint to Deputy General Manager, BSES, Hari Nagar and Public Grievances Cell, ITO. He further stated that he had filed a civil suit before the Ld. ACJ, Dwarka Courts challenging the theft electricity bill and Ld. ACJ passed a decree in that case in his favour which is Ex. DW-1/A. He further proved certified copy of regular paid electricity bills of his meter (21 bills) which are Ex. DW-1/B(colly.), certified copy of complaint dated 1306.2016 which is Ex. DW-1/D(colly) and Ct. Case No. 425048 of 2016 BRPL Vs. Manil Kumar Vats Page No. 8 of 15 certified copy of complaint dated 16.08.2016 which is Ex. DW- 1/E. He was duly cross-examined by Ld. Counsel for BSES.
7. Sh. Shishpal, Section Officer, BSES was examined as DW2. He has entered the witness box with copy of complaint register vide complaint no. 35732 dated 08.03.2016 given in Complaint Centre of BSES, Mitraon Village, Najafgarh, New delhi which is Ex. DW-2/1 and copy of application dated 23.03.2016 given by accused in BSES office Najafgarh vide diary no. 210 which is Ex. DW-2/2. He was duly cross-examined by Ld. Counsel for BSES.
8. Sh. Parmod Kumar, Junior IT Associate, BSES was examined as DW-3. He entered the witness box with a complaint dated 13.06.2016 with respect to burnt meter filed by accused Manil Kumar Vats to the BSES office same is Ex. DW- 3/A(OSR). He was duly cross-examined by Ld. Counsel for BSES.
9. Final arguments advanced by Ld. Counsel for the complainant and ld. counsel for accused heard. Case file perused carefully.
10. It is argued by Ld. Counsel for the complainant that accused was committing theft of electricity by tempering the meter and to destroy the trace/evidence of theft of electricity, he abnormally burnt the meter bearing no. 21888794. It is also argued that the meter was taken from the premises on 28.03.2016 and restored the supply of the premises through a new electronic meter bearing no. 26261445. The meter bearing no. 21888794 Ct. Case No. 425048 of 2016 BRPL Vs. Manil Kumar Vats Page No. 9 of 15 was sent to the laboratory in sealed condition for testing/analysis under intimation to the accused. It is also argued that on 26.04.2016 meter was tested by the laboratory and as per lab report, meter found abnormally burnt which substantiated that accused was committing theft of electricity by tempering the meter. It is also argued that on 31.05.2016 inspection was conducted at the impugned premises, however, due to resistance created by accused, connected load could not be assessed and hence sanctioned load of 2 KW is taken as connected load. It is also argued that the complainant has proved the case through five witnesses and accused be convicted.
11. On the other hand, it is argued by Ld. Counsel for accused that present case has been filed on the basis of false and concocted facts just to harass the accused in the present matter. It is further argued by Ld. Counsel for the accused that the meter got burnt on 08.03.2016 as there was a fire in the house of the accused/impugned premises and accused immediately made complaint regarding burning of the meter on the same date. It is also argued that accused made a second complaint regarding burning of the meter on 23.03.2016 and finally on the request of accused, the meter was changed on 28.03.2016. It is also submitted that accused thereafter received a bill of Rs.120/- which he tried to pay, however, it automatically changed to Rs. 2700/-. He made complaint regarding the same in BSES office. The bill was rectified, however, the BSES officials threatened him that they will implicate him in false cases. It is also argued that present case is nothing but a bundle of lies and be dismissed Ct. Case No. 425048 of 2016 BRPL Vs. Manil Kumar Vats Page No. 10 of 15 and accused be acquitted. It is also argued that the case has been made on the basis of laboratory report, however, the person who had tested the impugned meter had not brought as witness in the present matter. It is also argued that the laboratory report has been prepared by BSES officials and the same is nothing but false and fabricated. It is finally argued by Ld. Counsel for accused that complainant failed to prove its case, so the accused may be acquitted.
12. After hearing the submissions of both the sides and before proceedings further with deciding the present case, it is inevitable to discuss here as to whether the accused is a consumer within the meaning of section 2(15) of Electricity Act, 2003 or not. To decide this, the provision as enumerated under Section 2(15) of Electricity Act, 2003 is quoted here as under:
"Consumer" means any person who is supplied with electricity for his own use by a licensee or the Government or by any other person engaged in the business of supplying electricity to the public under this Act or any other law for the time being in force and includes any person whose premises are for the time being connected for the purpose of receiving electricity with the works of a licensee, the Government or such other person, as the case may be.
13. After going through the abovementioned definition/meaning of consumer and applying the same in the factual matrix of the present case; it is observed by the court that accused Manil Kumar Vats was admittedly living in the premises in question. He was using electricity, which was supplied by the complainant, in the impugned premises. A meter bearing no.21888794 had already been installed in the impugned Ct. Case No. 425048 of 2016 BRPL Vs. Manil Kumar Vats Page No. 11 of 15 premises and after burning of the meter, a new meter bearing no. 26261445 was installed at the impugned premises. Accordingly, accused Manil Kumar Vats is coming within the ambit of meaning of consumer as provided under Section 2(15) of Electricity Act, 2003.
14. Now, the question arises as to whether the complainant has proved the allegations as made through the present complaint thereby raising the presumption as provided under Section 135 of Electricity Act, 2003.
15. It is the allegation of the complainant that accused was committing theft of electricity by tempering the meter and to destroy the trace/evidence of theft of electricity, he abnormally burnt the meter bearing no. 21888794. It is also the case of the complainant that the meter was taken from the premises on 28.03.2016 and supply of electricity was restored through a new electronic meter bearing no. 26261445 and the meter was sent to the laboratory in sealed condition for testing/analysis under intimation to the accused. It is also the case of complainant that on 26.04.2016 meter was tested by the laboratory and as per lab report, meter found abnormally burnt which substantiated the fact that accused was committing theft of electricity by tempering the meter. So the main contention of the complainant is that the meter was tested in the laboratory and as per laboratory report Ex. CW1/B, it was proved that accused was committing theft of electricity by tempering the meter. The meter was admittedly tested by one Yogesh Ray, Engineer of BSES, however, very Ct. Case No. 425048 of 2016 BRPL Vs. Manil Kumar Vats Page No. 12 of 15 strangely he has not been produced as a witness. The entire case of the complainant is based on the lab report i.e. Ex. CW1/B, however, same has not been proved through the person who tested the impugned meter and prepared the same. Complainant produced PW-4 as a witness and he said that the meter was tested by Sh. Yogesh Ray in his presence. The court is unable to understand why Sh. Yogesh Ray has not been produced in evidence by complainant. The lab report Ex. CW1/B has not passed the test of examination and cross-examination, thus, cannot be said to be proved. Even otherwise, the said lab report Ex. CW1/B had been admittedly prepared by BSES officials and not by any independent agency or independent lab.
16. It is also observed by the court that accused filed a civil suit and through judgment Ex. DW1/A, the said theft bill Ex. CW1/I was declared null and void by Ld. ACJ. The court deem it fit to mention at this stage that judgment passed by Civil Court is not binding to a Criminal Court specially to a Special Court constituted under Electricity Act, 2003. Same has been propounded by Hon'ble Apex Court in M.S. Sheriff & Anr. Vs. State of Madras & Ors., AIR 1954 SC 397: 1954 SCR 1144, Iqbal Singh Marwah & Anr. Vs. Meenakshi Marwah & Anr., (2005) 4 SCC 370 and Kishan Singh Vs. Gurpal Singh, (2010) 8 SCC 775.
Be that as it may and without going further on this aspect and to proceed further with deciding the present matter on merits, the court has to mention, at the cost of repetition, that the basis of Ct. Case No. 425048 of 2016 BRPL Vs. Manil Kumar Vats Page No. 13 of 15 impugned theft bill Ex. CW1/I is the lab report Ex. CW1/B. It is again pertinent to mention here that said lab report has not been proved through the person who had conducted the test of meter. Even otherwise, after going through the said lab report Ex. CW1/B, it is observed that the crux of said lab report Ex. CW1/B is that the meter was found abnormally burnt. No reasoning has been given as to on what basis it has been declared as abnormally burnt and what are the parameters for consituting burning of a meter as abnormally burning. Even the speaking order Ex.CW1/H, is just the theoretical reproduction of lab report. So the only conclusion of Ex. CW1/B and Ex. CW1/H is that meter is abnormally burnt without giving any basis for reaching to that conclusion. The impugned theft bill has been prepared on the basis of lab report and speaking order Ex. CW1/B and Ex. CW1/H respectively. The court is of the view that the impugned theft bill is result of whims and fancies of complainant. Even consumption pattern pertains to till the month of February 2016 i.e. one month prior to date of burning of meter. No subsequent bills which has been generated after installation of new meter has been filed. So, the court is unable to reach to a comparative conclusion. So even the consumption pattern does not show anything to substantiate allegation raised by complainant.
17. In view of the abovementioned, the court is of the view that the complainant has miserably failed to even give a hint that accused has committed the alleged theft as alleged through the present complaint. As the complainant has failed to prove the impugned theft, no question arises of presumption as provided Ct. Case No. 425048 of 2016 BRPL Vs. Manil Kumar Vats Page No. 14 of 15 under Section 135 of Electricity Act.
18. Accordingly, accused Manil Kumar Vats, S/o Sh. Ram Niwas is acquitted of offence punishable under sections 135/138 of Electricity Act, 2003.
19. Accused has already furnished personal bond and surety bond in terms of Section 437-A Cr.P.C. The same have already been accepted and shall remain in force for a period of six months from today.
20. File be consigned to Record Room.
Pronounced in the open court on this Digitally signed
VINOD by VINOD
20th December, 2022 KUMAR
KUMAR MEENA
Date:
MEENA 2022.12.21
14:20:10 +0530
(VINOD KUMAR MEENA)
ASJ: Special Electricity Court
South West District, Dwarka Courts
New Delhi
Ct. Case No. 425048 of 2016
BRPL Vs. Manil Kumar Vats Page No. 15 of 15